This year, the governor of Florida. Ron DeSantis (R) signed in HB 1557, which critics call the “don’t say gay” bill, claiming that “clearly inappropriate pornographic material” is readily available in elementary schools across the state. texas schools started pulling books deemed ‘overtly sexual’ by Governor Greg Abbott (R). According a reportlists of banned books were distributed to school districts in 26 states.
Less important in the headlines but no less important is the WIN IT Actreappearing in Congress this mandate after it was originally proposed in 2020. On the surface, the law aims to prevent “online child sexual exploitation,” but in practice it would mean the government would have unprecedented access to data in an individual’s line and ability to regulate private websites of all kinds, not just porn sites.
But pornography is not really what is at stake here, neither increasing the marriage rate nor improving the lives of children (there are many more direct routes for that). Instead, it is what sociologist Joseph Gusfield called a symbolic crusade. White conservative Christians like Vance, DeSantis and Abbott are leveraging the pornography issue to secure their power within American culture and law, a tactic that has been used to well over a century.
The person responsible for implementing America’s first obscenity laws in 1873 was Anthony Comstock, a devout Protestant and Civil War veteran who opposed nudity in all its forms, including in art and theater. He was also a fierce opponent of women’s suffrage, contraception, alcohol, and gambling. He therefore made it his personal mission to bring the law into line with his religious convictions. He successfully lobbied Congress to expand federal punishment for transporting obscene material using U.S. mail and had himself appointed as a U.S. Postal Service Special Agent.
A self-proclaimed “weeder of God’s garden”, Comstock took responsibility for the arrest of more than 3,500 people on obscenity charges and the destruction of 160 tons of obscene literature.
But public opinion was changing at the turn of the 20th century. Towards the end of his life in 1915, experts derided Comstock as a religious fanatic out of touch with the modern, liberal changes sweeping the nation. Draftsman depicted him dragging a young woman into court and saying to the judge, “Your honor, this woman has given birth to a naked child!”
Equally 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 Comstock’s targets obscenity laws was Mary Ware Dennett, an 81-year-old grandmother. In 1929, she was charged with distributing a pamphlet that the prosecutor called “pure and simple smut”. The pamphlet in question explained the risks of sexual activity outside of marriage and included four hand-drawn anatomical pictures. Dennett had written the pamphlet years earlier for his two sons (then aged 11 and 14), but later allowed it to be printed in a medical journal whose subscribers were physicians 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 knocked her down, declaring her pamphlet not obscene. The case set precedent that intent and context are important when determining obscenity. Dozens of court cases like Dennett’s followed, and through them the courts tightened the legal definition of obscenity during the 20th century.
Most notably, the landmark 1973 Supreme Court decision Miller v. California obscenity defined across different “community standards” and said it was what “lacked serious literary, artistic, political or scientific merit”, providing a subjective benchmark that made cases of obscenity notoriously difficult to prosecute.
Obscenity laws are still in the books and pornographers are well aware of this (the famous camming site, OnlyFans, for example, has a long list prohibited terms), but most commercial pornography involving consenting adults is now a legally protected form of speech.
Other lawspassed before and after Miller decision, criminalized pornography involving children, both as consumers and as victims of sexual abuse. Cases involving children are therefore tried on separate counts, making obscenity laws even more obsolete.
Although they may have broad appeal, since the majority of Americans support strict laws against perpetrators of child sex crimes, recent Conservative proposals for new laws to crack down on child sexual abuse images or children’s access to pornography are largely legal dismissals.
When the Supreme Court heard the arguments of Miller v. California in 1973, more than 40% of Americans believed that all pornography should be illegal. In 2018, only about 1 in 3 people (or 32%) felt this way. For conservative Protestants, however, the meaning of change from the 20th to the 21st century has been the opposite: a greater percentage support banning pornography today than in decades past. Religiosity turns out to be the biggest influencing factor whether Americans think porn should be legal.
Today’s conservative Christian politicians who push for laws that regulate sexuality and crack down on what they call “pornographic material” are exploiting a broader interest among their constituents. But they cling to straws.
They speak of Comstock’s legacy, but also of his failures, because American law and public opinion are clear. Most sexually explicit media involving consenting adults is legally protected by 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 of a world we no longer live in.