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Here’s today’s COMMENT FROM AN OLD FART: Thank goodness for the U.S. Consitution which not only defines rights for Americans, but sets limits on government. Peter Lattman writes in the WSJ article, The Origins of Justice Stewart’s “I Know It When I See It”:

The Law Blog unabashedly loves Fred Shapiro, the Yale Law School librarian and the author of the indispensable “The Yale Book of Quotations.” In a column in the Yale alumni magazine earlier this year, he listed some of the most famous quotations by Yale alumni. Among them was the characterization of pornography by Supreme Court justice Potter Stewart (pictured): “I know it when I see it” (Jacobellis v. Ohio, 1964).

We also love Ray Lamontagne (Yale Law ’64), who sent Shapiro a letter after he read his column:

You might be interested to know that the Potter Stewart quote was actually provided to him by his law clerk, Alan Novak ’55, ’63 LLB. Justice Stewart was a great justice and I do not want to take anything away from him. But he was stuck on how to describe pornography, and Novak said to him, “Mr. Justice, you will know it when you see it.” The justice agreed, and Novak included that remark in the draft of the opinion. Whichever way you might want to attribute the quote, it came from a Yalie. http://blogs.wsj.com/law/2007/09/27/the-origins-of-justice-stewarts-i-know-it-when-i-see-it/

The government of Iceland “knows it when it sees it” and is taking steps to ban what it considers to be obscene. There is some evidence that sustained exposure to porn desensitizes one to valuing women and could support impulses toward violence against women.

A concise explanation of the issue of porn and violence against women can be found in Robert Jensen’s Pornography and Sexual Violence:

Implications for Policies and Practice

Debates about pornography up until the late 1970s were dominated by moral and legal arguments made in a framework that pitted religious conservatives who support traditional sexual mores against liberal defenders of sexual freedom. The feminist critique of pornography, growing out of the anti-rape and anti-violence movement, rejected that dichotomy and introduced a harm-based, civil-rights approach to the question ( Dworkin, 1988; MacKinnon, 1987). Rooted in the real-world experiences of women sharing stories through a grassroots movement, the feminist critique highlighted pornography’s harms to the women and children:

1. used in the production of pornography;
2. who have pornography forced on them;
3. who are sexually assaulted by men who use pornography; and
4. living in a culture in which pornography reinforces and sexualizes women’s subordinate status.

From this perspective, instead of focusing exclusively on narrow questions of causation, we can see that pornography’s impacts on the lives of all women and children — and especially those who have experienced violence and sexual violation — can be important. For example, if a woman is raped by a man she is dating who has in the past tried to force her to use pornography with him, the question of whether or not his pornography consumption was a causal factor in the rape may not be the most important issue. Instead, it would be important to examine how pornography was one component of a pattern of abuse in the relationship. This suggests that advocates in domestic and sexual violence work should ask survivors about the role of pornography in the abuse perpetrated against them.

While boys have long found ways to obtain pornography even though it is illegal to sell such material to minors, their access to hard-core pornography in the age of the Internet and VCR/DVD player has become steadily easier. And at the same time that pornography has become more mainstream, the mainstream media have become more pornographic. So, not only are men exposed to more — and more extreme — pornography at younger ages, but so are girls, with effects on their conception of their own sexuality.

It is also important to recognize that pornography is but one aspect of a huge sex industry, which includes not only mass-media sex but phone sex, strip clubs, massage parlors, escort services, street prostitution, and sex tourism. And sexuality — especially women’s sexuality — is used in increasingly more explicit ways to sell products of all kinds in advertising and marketing. This leads to what may be the most crucial question about pornography: What kind of human feeling, empathy, and intimate connections are possible in a world in which bodies are used so routinely in the process of selling and also are for sale virtually everywhere we turn? The implications of that are potentially dramatic, not only in the realm of sexual and domestic violence, but also in those areas of our lives that we want to believe are untouched by the domination/submission dynamic of patriarchy ( Jensen, 1997). Pornography is important not only for the specific effects it has on an individual man’s behavior, but for its role in shaping our conceptions of the body, gender, sexuality, and intimacy.

People who raise critical questions about pornography and the sex industry often are accused of being prudish, anti-sex, or repressive, but just the opposite is true. Such questions are crucial not only to the struggle to end sexual and domestic violence, but also to the task of building a healthy sexual culture. Activists in the anti-violence and anti-pornography movements have been at the forefront of that task. http://www.mincava.umn.edu/documents/arpornography/arpornography.html

The government looked at the evidence and decided to act.

The U.K.’s Telegraph reported in the article, Iceland considers pornography ban:

The government is considering introducing internet filters, such as those used to block China off form the worldwide web, in order to stop Icelanders downloading or viewing pornography on the internet.

The unprecedented censorship is justified by fears about damaging effects of the internet on children and women.

Ogmundur Jonasson, Iceland’s interior minister, is drafting legislation to stop the access of online pornographic images and videos by young people through computers, games consoles and smartphones.

“We have to be able to discuss a ban on violent pornography, which we all agree has a very harmful effects on young people and can have a clear link to incidences of violent crime,” he said.

Methods under consideration include blocking access to pornographic website addresses and making it illegal to use Icelandic credit cards to access pay-per-view pornography….

The proposed control over online access, that mirrors attempt in dictatorships such as China to restrict the internet, is justified as a defence of vulnerable women and children.

“Iceland is taking a very progressive approach that no other democratic country has tried,” said Professor Gail Dines, an expert on pornography and speaker at a recent conference at Reykjavik University. “It is looking a pornography from a new position – from the perspective of the harm it does to the women who appear in it and as a violation of their civil rights.” http://www.telegraph.co.uk/news/worldnews/europe/iceland/9866949/Iceland-considers-pornography-ban.html?fb

Iceland will use “government action” to control porn.

The U.S. Constitution does not prohibit all action against pornography, but unlimited government action like the actions contemplated by Iceland would be prohibited. The Center for Law and Justice summarizes Constitutional principles in Pornography on the Internet & in the Community:

Pornography and the First Amendment

Since 1973, the Supreme Court held (as a general rule) that the First Amendment protects pornography under the principle of freedom of speech. Miller v. California, 413 U.S. 15, 27 (1973).  This article discusses four major exceptions to this general rule, together with the ACLJ’s position on each.

Adult Obscenity (“hard-core” pornography)

The Supreme Court has declared time and again that “obscenity” is not protected by the Constitution. See, e.g., Roth v. United States, 354 U.S. 476, 484-85 (1957), Memoirs v. Massachusetts, 383 U.S. 413, 418 (1966).  Before 1973, obscenity and pornography were virtually synonymous. Id. In 1957, the Supreme Court said that the test for obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Roth v. United States, 354 U.S. 476 at 489 (1957).

But in 1973, the Supreme Court retreated from previous case law, and limited the government’s regulatory abilities to so-called “hard core” pornography. Miller, 413 U.S. at 27.  In doing so, the Court adopted a new three-part test for obscenity, limiting the regulation of obscenity to “works which depict or describe sexual conduct,” Miller, 413 U.S. at 24 (emphasis supplied).  Before 1973, the definition of “obscenity” allowed government to freely regulate pornography dealing with “sexual matters” (such as nudity), Memoirs, 383 U.S. at 418, and not just “sexual conduct.”

ACLJ’s position.  The ACLJ firmly advocates a change in the definition of “obscenity,” which would allow lawmakers to freely address the threat that pornography poses to their communities.  The Supreme Court adopted its 1973 definition, seemingly because it nobly desired an expansive interpretation of the First Amendment, while cutting out only the forms of pornography that harm society.  See Miller, 413 U.S. at 27-28. However, empirical evidence since then has strongly proven that pornography in general leads to violence and to the degradation of communities.¹⁰ As a result, it cannot be doubted that the Supreme Court’s newer, relaxed definition of obscenity has harmed society.

Child Pornography

The ban on child pornography has been upheld by the Supreme Court, which defines child pornography as “sexually explicit visual portrayals that feature children.” United States v. Williams, 553 U.S. 285, 288 (2008).  The Court has further said that proscription of child pornography does not violate the First Amendment, “even [if the] material … does not qualify as obscenity.” Id….

Separating Pornography from Children

Although the Supreme Court has held that the First Amendment protects “non-obscene” pornography, it has allowed governments to make pornography inaccessible to children.  In 1978, the Supreme Court noted that “the government’s interest in the well-being of its youth and in supporting parents’ claim to authority in their own household justified the regulation of otherwise protected expression.” FCC v. Pacifica, 438 U.S. 726, 749-50 (1978) (internal quotations omitted).  Furthermore, the government’s compelling interest in protecting children from pornography holds firm, even if that material is not obscene for adults. Ginsberg v. New York, 390 U.S. 629, 634-35 (1968); Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 755 (1996).  Such restrictions are especially appropriate over the airwaves, because “[p]atently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.” Pacifica, 438 U.S. at 748.  The Court also found it significant that radio is “uniquely accessible to children.” Id. at 749.

ACLJ’s position.  Even more so than radio broadcasts, Internet pornography is “uniquely accessible to children” and “confronts the citizen … in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.” Id. at 748-49. As a result, Congress has the clear, Constitutional authority to regulate the Internet to ensure that parents can protect their children from its greatest dangers.  ACLJ further supports a plan requiring pornographic websites to end with a “dot xxx” domain,¹¹ so that pornographic websites can be more easily identified and filtered before they are visited.

Pornography and Local Zoning Laws

The United States Supreme Court has upheld zoning ordinances that keep pornographic businesses from being concentrated in a specific area, or that keep them away from schools, parks, religious institutions, and residential areas. Renton v. Playtime Theaters, 475 U.S. 41, 44 (1986), City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 430 (2002).  Such ordinances are valid if they meet three criteria.  First, the ordinance must not infringe on pornographic “speech,” but must rather regulate the “time, place, and manner” of the business. Id. at 47. Second, the ordinance must not be aimed at restricting the content of the pornographic “speech,” but rather the secondary, harmful effects that such businesses have on the surrounding community. Id.¹²   Finally, the ordinance must be “designed to serve a substantial governmental interest,” and they must “not unreasonably limit alternative avenues of communication.” Id.

ACLJ’s position.  Because of pornography’s unique effects on neighborhoods and local crime, local communities have an important role to play in preventing its harmful effects.  ACLJ urges all municipalities to adopt zoning ordinances that curb the effects of pornographic businesses.

Conclusion

Pornography is more than just a private issue.  Over the past few decades, it has become a cultural crisis, with severe effects on society that are grossly underestimated.  Even if banning pornography altogether might be impracticable, ACLJ believes that lawmakers and communities should not be restrained in their efforts to address this issue.  ACLJ urges lawmakers to take advantage of the various options still available to them in combating the effects of this industry. http://aclj.org/pornography/pornography-on-the-internet-in-the-community

The culture seems to be sexualizing children at an ever younger age and it becomes more difficult for parents and guardians to allow children to just remain, well children, for a bit longer. Still, parents and guardians must do their part to make sure children are in safe and secure environments. As the Center for Law and Justice argues, there can be a case made for reasonable restrictions on porn which are Constitutionally permissible. The type of restrictions contemplated in Iceland would be considered “unconstitutional government action” in the U.S.

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