ALL RISE…A (SORT OF) LEGAL BRIEF: A Common-Sense Approach to Regulating Adult Media by Ron Scott

Ron is a burlesque fan, Doctor of Education and a pro bono attorney-mediator.  He was the American Jurisprudence Book Awardee in Constitutional Law while in law school.  This opinion piece was written with hopes of stimulating further discussion and reasonable reaction and follow-on action by governments and private individuals and groups.

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In an era in which well over half of Americans over age 21 access adult media on 2.5-plus million available sites, with women accounting for 25 percent of viewers and 60 percent of college students utilizing online adult media for basic sex education, what governmental regulation is appropriate?  Constitutionally speaking, no governmental regulation of adult media viewed in private by consenting adults is warranted – with four clearly-articulated exceptions, based on clear compelling governmental and societal interests.

It has been widely reported that visual sexual stimulation (VSS) is non-addictive.  In fact, VSS is potentially beneficial in several ways, including, among others, stress reduction and prevention of harmful sexual behaviors.   

What is adult media, and why is it referred to as “pornography”? Pornography includes media that depict erotic behavior and arouse sexual excitement.  So what’s wrong with that?  

Some authorities include the words “little or no artistic merit” when describing it.  The late United States Supreme Court Justice Potter Stewart remarked in Jacobellis v. Ohio, “I know it when I see it.” 

The hallmark of United States culture that makes it the envy of the world is the degree of respect by the government for individuals’ autonomy and privacy.  The implicit constitutional right of privacy prohibits unreasonable governmental intrusion into the private lives and affairs of citizens and residents.  This right of privacy – based on the First Amendment right of freedom of expression – empowers consenting adults to make deliberate, intelligent decisions about what media to watch, and what artistic, literary, personal, or scientific value to attach to their choices.  Even the late conservative, constitutional “originalist” Supreme Court Justice Antonin Scalia understood and passionately advocated for near-absolute First Amendment freedoms.

Viewing adult media is no more harmful to most adults and their relationships than are other similar vices, including drinking alcohol in moderation, recreational use of marijuana, and recreational gambling.  However, four classes of uniform governmental regulation of adult media are appropriate: (1) prohibition of child pornography; (2) prohibition of conduct that poses an imminent danger of serious bodily harm or death to adult media actors; (3) prohibition of nonconsensual conduct; and (4) reasonable time, place and manner restrictions on distribution and viewing adult media.   

Title 18 United States Code Section 2256 makes it a federal felony crime for adult media providers to fail to truthfully declare that no actors under age 18 are portrayed in their products and/or services.  Federal and state governments could, like social media platforms already do, also act to scrub the web of content that falls within the legitimate restrictions listed above.   

It is sometimes difficult when perusing adult media sites to distinguish between simulated and actual conduct and conduct that might result in serious bodily harm or death.  Whether such conduct poses a palpable imminent danger to adult media actors is a matter to be decided by the legal system on a case-by-case basis.

In May 2019, leaders of Nxivm who marketed a personal and professional development business, stood trial in New York, charged with sex trafficking and exploiting – starving, even branding – allegedly vulnerable women members of the group.  

In these cases, the victim’s “consent” is irrelevant, as one cannot consent to being maimed, tortured or killed.  On June 19, 2019, cult leader Keith Raniere was convicted on all counts.  He was sentenced to 120 years imprisonment on October 27, 2020.  In January 2021, he solicited an executive pardon from outgoing US president, Don Trump. 

To protect adult media actors from sexually transmitted diseases, including AIDS, Los Angeles-area health regulations have proposed requiring the use of condoms in portrayals of sexual conduct since February 2012, with heavy fines slated for their non-use.  However, the proposed regulations were never implemented, due to the strong objections by area adult-media actors, who hinted during public hearings that they might move operations from southern California to Nevada, where there are no such rules.  The adult film industry in California tests regularly for four sexually transmitted diseases (including HIV), according to McNeil.  

Time, place, and manner restrictions satisfy society’s compelling interest in preventing minors and others not intending to view adult media from being exposed to it.  Such measures include easy-to-read-and-follow warnings on adult websites about the nature of their contents, and effective systems of usernames, passwords, and encryption codes to restrict access to subscription adult content on the Internet to consenting adults.   

Whether legal adult media is acceptable or not is a matter of individual choice and preference for adults.  In Lawrence v. Texas, the United States Supreme Court ruled that consenting adults have the right to engage in intimate sexual conduct in the privacy of their places of abode, including, by extension, the right to freely access adult media via the Internet – for whatever legitimate purposes – if they so desire.   

The current legal standards for indecency and obscenity are outdated, unworkable,  all-encompassing, unenforceable, and selectively, albeit rarely, enforced – except in a very limited number of jurisdictions.  Under the commonly-used 1973 “Miller test,” most, if not all, adult content currently available could be subjectively adjudged illegal, because it is sexually-oriented and appeals to viewers’ sexual interests.  Even the justices of the Supreme Court are unsure just what these constitutionally vague standards are.  As a result, they should not stand.  

The suggestions presented are intended to provide a starting point for educated, rational discussion on how to fashion a reasonable, mature, uniform regulatory framework that maximizes adults’ First Amendment freedom of choice, while simultaneously protecting legitimate state and national compelling interests, including safeguarding minors under age 18 from media that are inappropriate for them, and protecting actors participating in adult media projects from exploitation.  The Ninth Circuit Court of Appeals suggested such an approach in a 2009 ruling in United States v. Kilbride, although the idea was never followed up on.

The array of available adult media content online evidences exponential growth in vanilla sex, as well as every conceivable fetish possible..  Over one million content creators and 90 million subscribers utilize the online platform OnlyFans, where adults offer nude and lingerie photos of themselves and even personalized content.  It reportedly has been a lifesaver for unemployed artists during the Coronavirus pandemic of 2019-2021. 

With so many critical political, health and other societal issues at stake, the vast array of financial, legislative, police, and private resources expended to combat the dissemination and viewing of legal adult media by consenting adults could be better utilized in this complex and ever-more-dangerous world.