Mimesis Law
25 August 2019

Debate: Want to Criminalize Pornography? Good Luck With That

January 17, 2017 (Fault Lines) — Ed. Note: In light of call for a pledge to rid the nation of pornography, we have charged Mario Machado and Chris Seaton to debate: Is porn a public health crisis in need of prohibition? Below is Mario’s argument:

In November of last year, California’s constituency rejected a proposal that pornography actors be required to wear prophylactics during all shoots. As unpredictable and non-progressive as America’s voters can be, they can get things right from time to time. Which is why even if we leave it to the non-deplorables people, they’ll get it right sometimes in the end, at least when it comes to leaving pornography be, and free of criminalization.

Those who have done their research have concluded that pornography helps to deter one of the most serious acts of criminality: rape. Melinda Wenner Moyer published the following in a 2011 article from Scientific American:

What if it turns out that ­pornography use actually reduces the desire to rape? It is a controversial idea, but some studies support it. Work in the 1960s and 1970s reported that sexual criminals tend to be exposed to pornographic materials at a later age than noncriminals. In 1992 Richard Green, a psychiatrist at Imperial College London, disclosed in his book Sexual Science and the Law that patients requesting treatment in clinics for sex offenders commonly say that pornography helps them keep their abnormal sexuality within the confines of their imagination. “Pornography seems to be protective,” Diamond says, perhaps because exposure correlates with lower levels of sexual repression, a potential rape risk factor.

That’s the scientific take on porn, but there’s always the relevant legal precedent of Miller v. California, which makes certain speech “obscene,” and thus illegal, so long as it satisfies the following 3-prong standard:

  1. The average person, applying contemporary community standards would find that such speech, taken as a whole, appeals to the prurient interest (i.e. a morbid or degrading interest in sexual activity, as opposed to simply a curious interest).
  2. The speech depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
  3. The speech, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Okay, for this debate, let’s assume that with regards to porn, the first 2 prongs are met, and that the line to be crossed is whether the scene “lacks serious literary, artistic, political, or scientific value.” Pretty much any porn flick can clear that hurdle, even the (in)famous “Two Girls, One Cup” video.* And no, porn is not prostitution either, so stop it.

So if 2 Girls, 1 Cup has any “serious” value (and it does), pretty much any other “performance will clear that Miller hurdle. Care to argue against an established Supreme Court precedent? By all means, but you’ll be left holding an empty bag in the end.

And it gets worse better for the porn advocates: the suppression of pornographic speech has negative implications when it comes to “morality-based impediments to the enforcement of Intellectual Property Rights (“IPRs”) and their supportability under international agreements.” But don’t take my word for it. Ask a bona fide First Amendment badass.

The fight between smut peddlers and the self-righteous has been going on since forever. It has even reached the U.S. Supreme Court, where a purveyor of dirty pornography prevailed against a censorious asshat by the name of Jerry Falwell. Putting aside the scientific and legal impediments to a porn ban aside, do you really want to be on the same side as Falwell, who wished ill and hell upon people whom he never met, let alone knew?

Yes, there are those who have performer’s remorse, who decry whatever evils and stigmatization that came (no pun) with being part of the porn industry. There are those who think that pornography treats objects like women, and thus that’s enough in and of itself to clear the third prong of Miller v. California. However, we are luckily a nation of laws, and that is why the grownups get to sleep better tonight, especially after reenacting 2 girls 1 cup the latest scene to come out of San Fernando Valley.

Rebuttal: Two words: relevant precedent. There’s nothing in Chris’ post that supports his saying that:

Pornography fits every prong of the Miller obscenity test. Its function is to arouse the viewer’s sexual desire. Sexual or excretory acts are depicted in every “adult film,” with some featuring both. And one would be hard pressed to find pornography’s serious scientific, political, literary, or artistic value.

Actually, one word will do: cite? There’s nothing, nada, that would support the claim that “one would be hard pressed to find pornography’s serious scientific, political, literary, or artistic value.” No film case cited, and all the scientific articles and repentant porn actresses in the planet can overcome the third prong of Miller v. California.

In playing the heel’s role against pornography, Chris uses the kitchen sink approach: foreign articles, “scientific” studies, MRI scans, and “hikkomori.” All with the noble hope that something will stick. But ask yourself this: is this an argument you’ll be able to make with a straight face in front of an appellate court anywhere?

I rest my case for now, and I’ll give Chris time to recover from the Fault Lines debate equivalent of being speared through a flaming table.

*Did you really think I would provide a link to that enlightening performance? However, there’s a link within that link.

7 Comments on this post.

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  • CLS
    17 January 2017 at 12:04 pm - Reply

    Mario’s debate beat-down ends with him comparing me to Mick Foley.

    That’s the proudest moment of my life. I can retire from the Fault Lines Debates now.

    • Mario Machado
      17 January 2017 at 12:58 pm - Reply

      What better way to conclude a gentlemanly duel than a spearing through a fiery table? As for Mick Foley, I’ve heard great things.

      Maybe you can return the favor during our next clash by comparing me to Lemmy? I’ve watched this (and conscripted many others to do the same) at least 50 times.

      • Jim Tyre
        17 January 2017 at 3:26 pm - Reply

        An hour and 51 minutes? Mario, don’t you realize that Fault Lines is renowned for short attention span?

        • Mario Machado
          17 January 2017 at 3:31 pm - Reply

          You mean Fault Lines or its readers, Jim?

          • Jim Tyre
            17 January 2017 at 3:33 pm -

            Are not its writers among its readers?

  • Legalize Child Porn? | Popehat
    17 January 2017 at 4:57 pm - Reply

    […] The rationale for the regulation was that you, Jane Q. Citizen, could not watch an obscene movie without it seeping into your mind and destroying it. While Stanley threw that out, that theory persists — even for non obscene content — in the minds of those who want to control what you can read, see, and hear. See PORN! PORN! PORN! WEB PAGES OF DEATH! and see a debate at Mimesis Law where Chris Seaton argues to make all porn illegal, and Mario Machado argues against it. […]

  • Mason
    19 January 2017 at 12:20 am - Reply

    Some things can never be unseen.