Biden and Harris Finally Back Free Speech — For Porn

Porn: everyone can see it but few will talk about it. Before photography, there were tasteful paintings at a downtown museum. Before the internet, there were tasteless videos at a few across-the-tracks theaters. Now in every man’s pocket cellphone is a cavernous public library with endless rows of towering shelves, all filled with three-minute clips of every imaginable kind of sexual release. Easy access has led to overwhelming use. Three of the five most-trafficked websites in the United States, according to data from April 2023, are porn. “The internet is for porn” now, as the saying goes.

Republican states, teaming up to make it just a little bit harder to get internet porn, have passed laws requiring porn sites to verify that those accessing their vast collections are adults because, as everyone knows, any American child with an internet connection can access 57 varieties of porn in less than 57 seconds. At the Supreme Court, the Biden–Harris administration has teamed up with pornographers to challenge these laws. They argue that the modern web’s Thanksgiving buffet of porn is a blessing of the First Amendment. Any regulation of internet porn, they argue, must therefore satisfy the highest constitutional test known as “strict scrutiny.”

Biden and Harris are wrong. Common internet porn is not First Amendment speech. Like drugs or alcohol, it may be regulated for any rational reason.

Biden and Harris ban criticism of their tyrannical pandemic mandates. They voice no opposition to offline public libraries requiring library cards. But only the highest need, they argue now, can justify slowing down even a little bit how fast Americans can get their porn fix. Like their monomaniacal support for abortion, marijuana, sports gambling, and transsexual surgeries even for children, Biden and Harris’ zealous defense of porn is another way they show you that, to them, you are not dignified citizens but mere subjects for whom they seek the worst.

Biden and Harris are wrong about the First Amendment. In Reno v. ACLU, the Supreme Court restated the long-held rule that “obscene” material could be banned. It struck down a federal law making it a crime to transmit over the internet “indecent” material to minors, but not because the First Amendment protected internet porn. Rather, the court worried that the law’s failure to specify what counted as “indecent” would dissuade citizens, for fear of criminal prosecution, from publishing material that some may regard as indecent but is surely First Amendment protected: Stanley Kubrick’s Eyes Wide Shut, for example.

But Reno was in 1997. That was the fin de siècle for porn. Back then, porn films had plots. Scripts. Characters with names. They surely had explicit scenes. But as adaptations of an artistic form, they had to have some meaning — even if it wasn’t all that thoughtful. Characters had to go into and out of sex scenes with motives and thoughts — and clothes.

Today, common internet porn is little more than public sex with a camera rolling. It’s like synthetic THC or fentanyl over plant-based THC or opiates. It’s high-concentration smut designed solely to stimulate its viewers as quickly as a shot of smack saturates the blood. It’s not political speech, the core of the First Amendment for which Biden and Harris show little favor. It’s not literature, an unquestioned beneficiary of the First Amendment as envisioned by the Framers. Like having sex in the public park, it’s conduct — not speech.

Material does not become speech merely because it is published over the same medium as Kubrick’s Barry Lyndon. A strobe light is a collection of light like a film. It is not speech. A CAPTCHA image is a collection of text like George Eliot’s Silas Marner. It is not speech.

Common internet porn is like a strobe light or a CAPTCHA image. It’s made of the same stuff as speech, but it’s not speech. The final difference between speech and everything else is the capacity for a meaning or message. Whatever can deliver neither is of no concern for the First Amendment. Laws banning sex in the park are not subject to heightened scrutiny under the First Amendment. Nor should laws regulating common internet porn.

This is not about good meaning versus bad meaning, over which reasonable men may differ. Those who think the plot of Deep Throat was bad still have to agree that it had a plot. And yes, the line between meaning and meaninglessness can itself be debated. A museum recently passed off a banana taped to a wall as art. But in any reasonable view, lewd clips of bodily functions, which is what common internet porn is today, have no capacity to express meaning or message.

The First Amendment is the nation’s most important. And it is under assault — from Biden and Harris and even some Republicans. The reason the First Amendment matters — and the reason it is under assault — is the same: messages can move the masses toward meaningful action. So when it came to Americans resisting lockdowns and forced vaccinations, the ruling regime had no use for free speech. Now, when it seeks to recast the First Amendment as the opiate of the masses does it come riding to the Supreme Court, urging it to put red states’ anti-porn laws to the most exacting test. Our forebears fought for a divine right in the First Amendment. The Supreme Court must not let Biden and Harris smother it into the muck.

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