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Free speech and sex

by Beth Divine 25 Feb 2018
While the USA – or those parts of it known as ‘the Bible belt’ – is known for being prudish and conservative, it is important to note that porn is not illegal in any of them. There might be some restrictions on it, but if you want to access porn badly enough, you can. This is because sexuality and the expression of it is considered to be ‘free speech’ which is famously enshrined in the US constitution. 

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However, obscenity is not covered. Obscenity, when first used as a legal term in a court of law, was defined as that which: “taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value.” While this might seem to cover all pornography (we all have a ‘prurient interest in sex’, why else would we watch porn?) – as, indeed, many of the more prudish among us have tried to insist – it is, nowadays, widely accepted that consensual sexual acts between adults, who are fully aware that they are making porn films that will be sold all over the world does not constitute obscenity. This was enshrined in US law in 1988, the People vs Freeman. Of course, there is a dark side to porn, as there is to all walks of life, and it is here that these obscenity laws can be employed for the protection of all, including (perhaps especially) those who are involved with the industry. 

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Another reason for the ‘freedom of speech’ defence of porn is possibly down to supply and demand. If everyone was, as protesters insist, completely disgusted by porn, then no one would buy it and the industry would die off rapidly. Instead, it is often those who protest that it is ‘filth’ and should be banned who are found to have vast amounts of porn on their computers! The porn industry exists and is so large because there is enormous demand for it, period. 

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Protesters also claim that sexual violence is worsened by porn, but the many studies into the subject have not been able to establish a clear correlation. Even when violence is proven, it is hard to say whether the perpetrator actively looked for porn that played out his or her fantasies or whether they would have enacted them out anyway… The most common consensus is that while some graphic depictions may mislead watchers, if the rest of their lives are stable and steady (enough money, love and sense of purpose etc., good mental health and basic common sense and manners) then they are highly unlikely to copy the more extreme acts they might see online. On the other hand, those who are not mentally well, who have suffered extreme abuse themselves or who are simply built that way may very well re-enact darker desires – but the problem is not the access to porn, it lies within the person’s psyche… 

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So, porn is covered under freedom of speech laws, and thus is ‘safe’ from being banned unless it is extreme and features illegal actions. However, just as you are free to express a controversial opinion remember that those protections allow other people to protest that opinion. There are always going to be people who are anti-porn for whatever reason. They are allowed to be. But their opinions do not have to stop you enjoying your favourite porn stars performing for your pleasure.