White conservatives use anti-pornography crusades to secure power

This year, Florida Gov. Ron DeSantis (R) signed into law HB 1557, which critics call the “don’t say gay” bill, claiming that “clearly inappropriate pornographic materials” are readily available in elementary schools across the state. Texas schools started pulling books deemed “overtly sexual” by Gov. Greg Abbott (R). According to one report, banned-book lists have been circulated in school districts across 26 states.

Less prominent in the headlines but no less consequential is the EARN IT Act, reappearing in Congress this term after initially being proposed in 2020. On the surface, the act is intended to prevent “online child sexual exploitation” but in practice it would mean that the government would have unprecedented access to an individual’s online data and the ability to regulate private websites of all kinds, not just the pornographic ones.

But pornography isn’t really what’s at stake here, nor is raising the marriage rate or improving the lives of children (there are many more direct routes for that). Instead, it’s what sociologist Joseph Gusfield has called a symbolic crusade. White conservative Christians like Vance, DeSantis and Abbott are leveraging the issue of pornography to secure their power within American culture and law, a tactic that has been used for well over a century.

The person responsible for implementing America’s earliest obscenity laws in 1873 was Anthony Comstock, a devout Protestant and Civil War veteran who opposed nudity in all forms, including in art and theater. He was also a staunch opponent of women’s voting rights, contraception, alcohol and gambling. And so he made it his personal mission to align the law with his religious beliefs. He successfully lobbied Congress to expand the federal punishment for transporting obscene materials using the U.S. mail and got himself appointed as a special agent of the U.S. Postal Service.

A self-proclaimed “weeder in God’s garden,” Comstock took responsibility for the arrests of more than 3,500 people on obscenity charges and for destroying 160 tons of obscene literature.

But public opinion was changing at the turn of the 20th century. Near the end of his life in 1915, pundits mocked Comstock as a religious zealot who was out of touch with modern and liberal changes sweeping the nation. One cartoonist depicted him dragging a young woman to court and saying to the judge, “Your honor, this woman gave birth to a naked child!”

Just as significantly, Comstock’s obscenity charges had an unintended consequence once they hit the courts, ultimately undermining the very laws he passed.

For example, one of the targets of Comstock’s obscenity laws was Mary Ware Dennett, an 81-year-old grandmother. In 1929, she was charged for distributing a pamphlet the prosecuting attorney called “pure and simple smut.” The pamphlet in question explained the risks of sexual activity outside of marriage and included four hand-drawn anatomical images. Dennett had written the pamphlet years earlier for her two sons (then ages 11 and 14) but later permitted it to be printed in a medical journal whose subscribers were doctors and educators.

After 40 minutes of deliberation, the jury returned with a guilty verdict, agreeing with the prosecutor that Dennett’s pamphlet was obscene. But less than a year after Dennett’s guilty verdict, a circuit court unanimously overturned it, declaring her pamphlet not obscene. The case set a precedent that intent and context matter when it comes to determinations of obscenity. Dozens of court cases like Dennett’s followed, and through them, the courts narrowed the legal definition of obscenity over the course of the 20th century.

Most notably, the landmark 1973 Supreme Court decision Miller v. California defined obscenity through varying “community standards” and said it was that which “lacks serious literary, artistic, political, or scientific value,” providing a subjective benchmark that made obscenity cases notoriously difficult to prosecute.

Obscenity laws are still on the books and pornographers are keenly aware of them (the popular camming website, OnlyFans, for example, has a long list of forbidden terms), but most commercial pornography involving consenting adults is now a legally protected form of speech.

Other laws, passed before and after the Miller decision, have criminalized pornography involving children, both as consumers and as victims of sexual abuse. Cases involving children therefore are tried under distinct charges, making obscenity laws further obsolete.

Though they may have broad appeal, since the majority of Americans support tough laws against perpetrators of sexual crimes involving children, conservatives’ recent proposals for new laws to crack down on images of child sexual abuse or children’s access to pornography are largely legal redundancies.

When the Supreme Court heard arguments in Miller v. California in 1973, more than 40 percent of Americans thought that all pornography should be illegal. In 2018, only about 1 in 3 (or 32 percent) held this view. For conservative Protestants, though, the direction of the change from the 20th to the 21st century has been the opposite: a greater percentage support outlawing pornography today than in decades past. Religiosity proves to be the greatest influencer on whether Americans think pornography should be legal.

Today’s conservative Christian politicians pushing laws that regulate sexuality and crack down on what they call “pornographic material” are tapping into a broader interest among their constituents. But they are grasping at straws.

They evoke Comstock’s legacy, but also his failures, because American law and public opinion are clear. Most sexually explicit media involving consenting adults is legally protected under the First Amendment, and books dealing with themes such as sexuality or racism can help children navigate complex and important conversations. In short, the tactics and beliefs of Vance and his GOP peers are relics from a world in which we no longer live.