The country could do much more to control this scourge, and it could do so without violating the First Amendment.
About the author: David French is a contributing writer at The Atlantic and the author of its newsletter The Third Rail. French is also a senior editor at The Dispatch.
America is in the grips of two kinds of child-pornography problems. The first involves the production of child pornography itself—the abuse of children photographed, filmed, and monetized. The second involves the remarkably early age at which children are now exposed to pornography, when they start to see the images that shape their minds and hearts.
Both have profound costs. The terrible toll of child sexual abuse requires little explanation. Many girls and boys who have survived abuse carry the consequences for a lifetime, and because of the almost endless ability of porn consumers to find, download, and upload the same images, survivors can be traumatized again and again.
The consequences of childhood sexual exposure—while in no way comparable to the trauma of those exploited—are also becoming clear. Women and men are reporting that their relationships are twisted and distorted by early exposure to porn, and that’s contributing to an immense amount of pain, exploitation, and heartbreak.
But our nation doesn’t have to consent to child sexual exploitation or child sexual exposure as terrible but inevitable “costs of freedom.” Our culture and our government possess tools to deal with these problems, and those tools are consistent with the First Amendment. The challenge is in doing so with enough creativity and pugnacity to take on a ubiquitous, resilient industry.
Child sexual abuse may be (almost) universally reviled, but it is also widely consumed, including on some mainstream porn websites. A survey of recent media investigations reveals some rather staggering scandals. Investigations of the popular porn sites OnlyFans and xHamster have uncovered thoroughly inadequate controls on child pornography. A Twitter plan to allow users to sell OnlyFans-style porn subscriptions floundered when an internal study determined that “Twitter cannot accurately detect child sexual exploitation and non-consensual nudity at scale.”
Most notably, in 2020, The New York Times’ Nick Kristof wrote a searing story called “The Children of Pornhub” that highlighted how remarkably easy it was to find child pornography on Pornhub and described the high cost of abuse to the young girls who survived it. More recently, one of the young women Kristof profiled, Serena Fleites, filed a lawsuit against MindGeek (the company that owns Pornhub) and Visa, claiming that both companies had violated the Trafficking Victims Protection Reauthorization Act—which grants trafficking victims a private right of action against traffickers and against beneficiaries of trafficking ventures—by knowingly taking part in the “monetization of child porn.”
Fleites’s allegations make for tough reading. “MindGeek,” she claims, “employed a barebones team of as few as 6 but never more than about 30 untrained, minimum wage contractors to monitor the millions of daily uploads.” Even more alarming, she alleged that moderators were paid bonuses based on the number of posts they approved, not the number of posts they rejected. As the judge in her case noted, “Such an incentive structure suggests that content moderation was not the goal.”
Using children to make porn is plainly abusive. Permitting children to see porn may not create the same kind of trauma, but it has profound negative effects nonetheless. Last September Michelle Goldberg wrote an important column for The New York Times that contained this exchange from the feminist philosopher Amia Srinivasan’s book, The Right to Sex.
In a class at the University of Oxford, Srinivasan writes, she asked, “Could it be that pornography doesn’t merely depict the subordination of women, but actually makes it real?”
Her students said yes, she wrote. Srinivasan asked a follow-up: “Does porn bear responsibility for the objectification of women, for the marginalization of women, for sexual violence against women?”
According to Srinivasan, they said “yes to all of it.”
Pornography is warping the minds and hearts of young men, as many writers, both here in The Atlantic and elsewhere across our culture, have noted. It can create wildly unrealistic expectations of sexual performance, and—in the worst cases—it can lead men to believe that women expect or even enjoy degrading or violent sexual practices. Young women already know this; they need only look to their own experience and the experience of their friends.
It’s easy to see why porn can have this effect, especially on young minds. Many porn sites are full of depictions of dominating, abusive behavior. A survey of news reports and court documents detailing the contents of porn sites reveals much that is disturbing. “Barely legal” videos are deliberately filmed to make it appear as if grown men are having sex with young teens, and many of the allegedly “barely legal” videos aren’t legal at all. Videos depicting real or simulated rape and assault proliferate online, and even pornography that clearly depicts adult, consenting performers portrays sex that is utterly alien from the experiences of most couples.
Read: Is porn culture to be feared?
Moreover, the costs of porn are not borne only by women—though women are the principal victims of a form of “entertainment” that seems virtually lab-engineered to attract the male gaze. Many young men don’t have the slightest clue as to what “normal” sexual activity looks like, and they feel a pressure to perform like the performers they’ve watched for years. They expect women to like what female porn stars seem to like. And thus they place impossible expectations on themselves and their partners.
A memorable 2018 Atlantic cover story on America’s “sex recession”—the decline of young people having sex—discussed widespread availability of pornography as one of the culprits. Young men are replacing sexual intimacy with masturbation, and that is resulting in a cascade of negative academic, social, and sexual consequences.
Yet that’s far from the only cost of early male exposure to pornography. In many cases, it starts a process of character deformation in teen boys. Because parents disapprove of their kids viewing porn, boys learn to cover their tracks. Some grow practiced in deception, and they carry this pattern of deception into adult relationships—where they shield porn habits from their partner.
Countless marriages have been rocked by revelations that the husband watches pornography secretly and compulsively. In many of those cases, it’s not just the pornography that wounds the spouse; it’s the deception.
Thus here we are, in 2022, with a growing bipartisan, secular, and religious consensus that both childhood sexual abuse and childhood sexual exposure are creating or contributing to a series of cultural crises. And that leads us to a question: What can be done?
There is no substitute for parental vigilance, of course, but talk to even the most diligent parents and you’ll learn that they often feel helpless, for good reason. There are so many methods for avoiding parental controls—especially when many children are far more tech-savvy than their parents—that parents despair of shielding their children from the images they simply shouldn’t see.
Moreover, maximalist legal positions—such as banning pornography altogether—will go nowhere, for the simple reason that even if political majorities wanted to ban porn, the First Amendment wouldn’t permit it.
We know this because it’s already been tried: In the early 1980s, an effort to ban porn grew out of an unusual but long-standing consensus between religious conservatives and progressive feminists on this issue. Many religious conservatives have always viewed pornography as inherently immoral. A number of second-wave feminists, led by Catharine MacKinnon and Andrea Dworkin, also viewed it as discriminatory. Porn, they argued, exploited and subjugated women.
And so, in a little-remembered episode of American legal history, MacKinnon and Dworkin worked with social conservatives in the city of Indianapolis to write an ordinance that banned porn. “Pornography,” the ordinance stated, “is a systematic practice of exploitation and subordination based on sex which differentially harms women.” It was deemed “central in creating and maintaining sex as a basis for discrimination.”
The legal theory was creative. It tied pornography to then-nascent legal doctrines expanding definitions of sex discrimination. But it got wiped out in court. A federal trial judge struck it down. Then the federal Court of Appeals for the Seventh Circuit struck it down, with Judge Frank Easterbrook writing the majority opinion. Then, lest there be any doubt about the outcome, in 1986 the Supreme Court summarily affirmed the Seventh Circuit, without full briefing and without oral argument.
Eleven years later, the Supreme Court made its point yet again. The Communications Decency Act, written at the dawn of the internet, tried to regulate children’s access to porn by criminalizing the “knowing” sending or displaying of certain kinds of pornographic images to a person under 18.
In Reno v. ACLU, the Supreme Court struck down the law’s age provisions, noting that there were a number of technical challenges to requiring age screening, and that age limitations “must inevitably curtail a significant amount of adult communication on the Internet.” In other words, the burdens placed on websites to police the age of their users would necessarily suppress the expression of constitutionally protected speech among adults.
Between the two cases, the legal difficulties were clear. First, outright bans on porn won’t survive constitutional review, and second, even otherwise-constitutional age restrictions (children do not possess a constitutional right to view porn) won’t pass judicial review if the cost of compliance excessively burdens protected speech by adults, to adults.
But this case law does not render our culture—or our government—helpless. Companies such as Visa, Mastercard, and Discover could choose to block consumers from using their credit cards to make purchases on Pornhub, as they did after Kristof’s story was published in the Times. (Visa later reinstated payments on Mindgeek sites that it said “offer professionally produced adult studio content that is subject to requirements designed to ensure compliance with the law.”)
Mastercard also announced that it would require “clear, unambiguous and documented consent” from all people depicted in pornographic content on all adult sites that use it for payment processing.
Each and every company that helps monetize pornographic content—including each and every major credit-card company—should impose the same rule. For those who fret about activist corporate overreach, remember that sharing child pornography, revenge porn, or other sex-abuse material is not a constitutionally protected activity and indeed is already prohibited by a number of federal or state criminal and civil statutes.
All of this is to say that corporate action to demand accountability and responsibility from pornographic websites isn’t suppressing legal commercial activity; it’s deterring the intentional and negligent distribution of illegal images.
There’s now an additional legal incentive for credit-card companies and other financial-services companies to impose strict standards on porn sites. In July, a federal district-court judge refused to dismiss Serena Fleites’s lawsuit against MindGeek and Visa. The court noted that “the emotional trauma that Plaintiff suffered flows directly from MindGeek’s monetization of her videos and the steps that MindGeek took to maximize that monetization.”
Moreover, the court detailed MindGeek’s “astonishingly strong” response after Visa’s reaction to Kristof’s story, which included removing 10 million videos from Pornhub. MindGeek was far more responsive to Visa than it allegedly was to even victims who complained about abusive material on its sites.
Shortly after the ruling, Visa and Mastercard suspended the use of their cards for ad purchases on MindGeek and Pornhub. Visa’s CEO and chairman, Al Kelly, said that the company strongly disagreed with the court’s ruling, but that it “created new uncertainty” about the role of MindGeek’s advertising, and that Visa cards can’t be used to purchase advertising on any MindGeek accounts.
This should be the beginning, not the end, of corporate responsibility. Financial-services companies should choose to do business only with those entities that rigorously age-gate their content. The United Kingdom is currently considering imposing a legal obligation on porn providers to block minors from their sites.
The British government doesn’t operate under the same kind of constitutional free-speech constraints as the American government does, and so it has greater legal freedom to impose restrictions on the porn industry. But that doesn’t mean that American private actors can’t learn from the British model.
Nor does it mean that American governments should rule out making another attempt at technically feasible age-gating. The Supreme Court’s prior decisions depended a great deal on the technical impossibility of age-gating without substantially burdening adult access to constitutionally protected material. They did not grant minors a constitutional right of access to pornography.
From the August 1966 issue: The obscenity business
Thus the question of age-gating may well be every bit as technical as it is legal. Ease the technical challenge, and you’ll likely cross the constitutional hurdle.
In addition, as Fleites’s case indicates, the prospect of using private rights of action to inhibit irresponsible conduct remains. In fact, as of October 1, victims of the “unauthorized dissemination of private, intimate images of both adults and children” will have access to a new federal civil cause of action.
Another model for limiting online pornography’s reach while respecting constitutional constraints exists, and it comes from decades of legislative efforts to mitigate the effects of offline porn. Beginning in the 1970s, courts began empowering local governments to regulate the locations of adult businesses through the “secondary-effects doctrine.”
For example, in Young v. American Mini Theatres, the Supreme Court upheld a Detroit “anti-skid row” ordinance, which prohibited adult businesses from being located close together in the same neighborhood. Writing for the majority, Justice John Paul Stevens noted that the city had concluded that a “concentration of ‘adult’ movie theaters causes the area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types of films. It is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of ‘offensive’ speech.”
In 1986, the Court reaffirmed this reasoning in City of Renton v. Playtime Theatres, which upheld a city zoning ordinance that prevented adult businesses “from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school.” Each of these prohibited areas represent places where children live, learn, and pray.
There’s no doubt that the secondary-effects doctrine has burdened the adult-entertainment industry. It has not, however, come close to prohibiting it. Similarly, internet regulation aimed at the secondary effects of adult entertainment—accessibility by children and the inclusion of abusive material—should be constitutional even if it imposes additional burdens on porn sites, as long as those burdens are not so onerous that they, to quote Reno v. ACLU, “curtail a significant amount of adult communication” online.
Pornography is a multibillion-dollar business that directly profits both from child abuse and from sales of sexual images to young children. Child sex abuse destroys lives. Childhood sexual exposure has warped the marriages and intimate relationships of an entire generation of Americans. It is not too much to ask American culture, American corporations, and American governments to respond. The Constitution does not require us to sacrifice childhood innocence on the altar of adult lust.
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