Pornography as a “Public Health” Crisis: Censoring Sexual Speech Through the Back Door

Pornography has once again been thrust onto the public stage. This time, however, it’s been (re)framed as a “public health” issue (as opposed to a women’s equality issue or a source of criminal harm). I’ve been researching sexual speech for almost as long as I’ve been consuming it, which is to say a long time. It therefore comes as no surprise that we’re in the midst of yet another attempt to censor it and to surveille its consumers.

In March of 2016, Utah’s House of Representatives passed a resolution declaring porn a “public health hazard leading to a broad spectrum of individual and public health impacts and societal harms”. Numerous states have since followed suit. The Republican Party, in its 2016 party platform, has described pornography as “a public health crisis that is destroying the lives of millions” and encouraged states to “continue to fight this public menace.” Even former playboy bunny (14 times over) Pamela Anderson has co-authored an op-ed in the Washington Post where she has called pornography “a public hazard of unprecedented seriousness” and “a boring wasteful and dead-end outlet for people too lazy to reap the ample rewards of healthy sexuality.”

Canada (along with the UK, Australia and New Zealand) has also witnessed a similar public debate. On March 8th, 2016 Canadian Conservative MP Arnold Viersen introduced private member’s motion--Motion M-47--instructing the Standing Committee on Health to “examine the public health effects of the ease of access and viewing of online violent and degrading sexually explicit material on children, women and men” and requiring the Committee to report its findings to the House no later than July 2017. According to Vierson a motion of this nature was necessary in light of “recent national incidents of sexual violence in the last few years [Amanda Todd, Rehtaea Parsons, and the Dalhousie dentistry students]” which lead him to wonder “where these individuals get the idea that this behavior involving sexual violence is acceptable.” While Vierson seems to have presupposed a causal link between porn and rape despite much evidence to the contrary, MPs from all five parties nevertheless passed M-47 unanimously and, following months of hearings, the Health Committee released its final report on June 9, 2017.

My commentary is limited to a few reflections on the censorship and surveillance issues arising from the recent debate, both nationally and abroad. There is a small body of scholarly evidence that has found correlation between sexually explicit imagery and negative consequences for individuals and for families. The question is whether this research is methodologically sound; whether it is representative of all the possible outcomes of exposure to porn; and whether research demonstrating alternative consequences also exists and is persuasive. My twenty plus years of experience researching in this field leads me to conclude that while some of this research may be valid, much of it is not: many studies’ methodologies are flawed or biased; the evidence about porn’s harms is regularly over-stated; and a large body of case law and evidence has demonstrated the potential benefits of creating and consuming sexually explicit material (see this brief for more on the issue of evidence).

Reframing porn as a “public heath” issue is not an insignificant development. The meaning of “public health” has gradually expanded over the past few decades. Where it was once used to refer to the securing of public health benefits—clear water, improved sanitation, disease control—it is now often used in reference to opioid epidemics, gun violence and obesity. To frame pornography as a “public health” issue is to elevate it to the status of extremely influential and harmful speech requiring exceptional regulation. (At the same time, we are not seeing a call for a ban on sexual or violent representations in mainstream or video games, for example). Referring to porn as a public health issue also suggests that it requires a more structural and collective response. The entire thrust of contemporary anti-porn advocacy is that it is not up to individuals or families to regulate themselves and their offspring but rather a state-led response is necessary. Analogizing the threat of porn to the threat of cigarettes and drugs, contemporary anti-porn advocates thus implore the state to step in and control access in much the same way as tobacco is currently regulated.

So, what are anti-porn advocates demanding of the state and why is their cause for concern? To begin with, they are calling for the implementation of “meaningful age verification”, a proposal that our Standing Committee on Health did not recommend in its final report (and has therefore been reiterated by the anti-porn folks in a dissenting report representing the views of the Conservative Members of the Committee). Meaningful age verification—as is used with the gambling industry—requires a user to provide a credit card or third-party verification system to prove that you are 18 before you can access porn. The UK has already legislated this in its Digital Economy Act which came into force in April 2017. In the UK, the age verification regulator requires internet service providers to block pornographic websites that do not offer age verification therefore de facto censoring huge swaths of legal sexual speech. This age verification provision has caused concern regarding the privacy of collected user data and the possible ineffectiveness of a method focused on restricting payments. Others have expressed concern that it is likely to lead to a database of viewing habits being held by companies or by the Government, which experts have warned could easily be hacked and exposed.

Anti-porn advocates are also asking for the state to label all pornography (not just “violent” porn) as harmful because of its purported addictive qualities. While porn may be addictive to some people, psychological associations have refused to include sex and porn addiction alongside drug addiction in clinical guidelines because the concept of addiction is precise and is meant to be used in ways that accurately reflects a widespread occurrence. This demand for a “harmful warning” begs questions about why sexual speech (that is not even deemed obscene) is subject to more government regulation than other speech acts and other sites where violence, sexuality, and racist attitudes are expressed. Moreover, those who tout the overwhelming “harmfulness” of porn do not appear to factor the pleasures and benefits of sexual speech into their calculation. Porn is rarely if ever presumed to have an intrinsic value (like artistic or scientific speech). In fact, it is rarely acknowledged as valid speech at all. The description of porn as predominantly or merely arousing emotions, desires, and thoughts within us that are allegedly wholly negative, uncontrollable, and implicitly less valuable than other speech that influences and incites is not only unsupported it also exceptionalizes sexual speech and is an indication of the sexual prurience that informs this position.

Finally, the “porn as health menace” folks are demanding that the government force internet service providers to develop opt-in filters whereby all pornography is de facto restricted unless you opt-in to accessing it. Again, a key issue here is the privacy implications and general aversion to the development of list of people who choose to see porn online-what at least one person referred to as being deemed a “Pervert registry” potentially searchable by employers, lending institutions, and insurance companies. Even if our government chooses not to adopt this opt-in model of censorship, attempts to “merely” block content that is deemed obscene by governmental committees would also invite a different set of censorship issues. For example, in the UK--the jurisdiction cited most favourably by the anti-porn folks--the Digital Economy Act also forces internet service providers to block sites hosting content that would not be certified for commercial DVD sale by the British Board of Film Classification (BBFC). This has meant that “nonconventional” content, such as “[p]ictures and videos that show spanking, whipping or caning that leaves marks, and sex acts involving urination, female ejaculation or menstruation as well as sex in public are likely to be caught by the ban.” In other words, content that is widely associated with feminist, queer, kink, but also mainstream communities internationally. Notably, in Canada we’ve already successfully (somewhat) fought censorship of this nature—instigated by border security agencies who consistently confiscated queer and kink porn—at the Supreme Court of Canada in Little Sisters Book and Art Emporium v. Canada (Minister of Justice) [2000].

So, where does this leave us? The Government has 120 days from the tabling of the June 9th Report to respond. I’ll be watching. Maybe you will be too?

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*cross posted with Ryerson University's Centre for Free Expression blog