The Pornography Free Pass

Have you ever wondered why so much sexually explicit content pollutes the internet today? Hardcore pornography is omnipresent online, even for children. Did something magically happen that green-lighted unlimited pornography on everyone’s mobile devices and laptops?

The answer is a dirty little secret federal enforcement officials would like you to ignore: a knowing and informed decision by the U.S. Department of Justice during the Obama administration to open the floodgates and allow unfettered and unregulated pornography into our culture and communities.

Federal law makes it a crime to disseminate obscene pornography, including on the internet. Under the well-known Supreme Court case Miller v. California, obscenity has no First Amendment protection and may be completely banned. Pursuant to recommendations of the 1986 Final Report of the Attorney General’s Commission on Pornography, the Department of Justice established the Child Exploitation and Obscenity Section. Launched in 1987, the Child Exploitation and Obscenity Section had remarkable success prosecuting obscenity cases, achieving a conviction percentage above 93 percent in more than 30 cases prosecuted to conclusion.

In 2009, however, the Obama administration pulled the plug on obscenity prosecutions, halting the only effective deterrence to the unlimited dissemination of hardcore pornography. In effect, the Obama DOJ asked the online porn industry to regulate itself. It doesn’t take a genius to see how this was going to end. The pornography floodgates opened and have only increased since then.

To be fair, the Obama DOJ rolled out the usual excuses to support its decision, saying it was focusing on “higher priority” prosecutions. Unfortunately for America, this decision could not have come at a worse time. Federal obscenity enforcement ended as the internet exploded. Since 2009, both Democrat and Republican administrations have continued the hands-off policy toward the online pornography industry.

We were always told that porn is a victimless crime. Why should law enforcement insert itself between an adult and the pornography of his choice? The reality is that there are verifiable consequences from the decision to grant the online porn industry free range to our society. (RELATED: Blame Everyone for Grok’s Perverted Porn Problem)

There is now an epidemic of “rape pornography” videos on the internet that are uploaded and monetized. These aggressive and violent acts against women are not only horrific and traumatizing, but they also normalize behaviors such as choking and violent sex, damaging healthy relationships and social norms. The National Center on Sexual Exploitation Law Center represents victims of rape pornography, with several cases now in litigation against online platforms that monetize these crime scene images. (RELATED: How the Porn Industry Is Fueled by Nonconsensual Videos)

Thousands of people are victimized every day by deepfake pornography. Using easily available AI, anyone can use a clothed picture of another person and make it appear as if that person is engaging in sexual acts. The fake image or video can then be uploaded to the internet to be viewed by millions. (RELATED: The Internet Has a New Problem: Deepfaked Pornography)

Pornography is used for extortion. Often referred to as “sextortion,” this occurs when extortionists target vulnerable individuals, especially teenage boys, to send sexual images of themselves, or use forged sexual images created via deepfakes, to coerce them to pay money or risk having their images (manufactured or real), posted on the internet.

There is now a crisis of so-called revenge pornography. Former partners uploading sexually explicit videos of women without their consent, or deepfakes made to harass women, cause profound shame, pain, and sometimes suicidal ideation. These images can remain on the internet forever. The Take It Down Act criminalizes this behavior, but the truth remains that many women have been, or are at risk of, being victimized in this horrific way.

Virtually every social services agency in America is reporting widespread physical child-on-child sexual abuse. This occurs when children act out on their peers or relatives what they see in pornography. Nationwide, and in other countries, this has become a significant problem that hospitals, social services, and families struggle to address.

Online hardcore platforms provide cover for child pornography. The failure to prosecute hardcore pornography sites, like Pornhub, creates cover for immense amounts of child pornography (aka child sexual abuse material, CSAM) rampant online. New York Times journalist Nicholas Kristof exposed Pornhub for featuring millions of rape videos, sex trafficking victims, CSAM, and other nonconsensual content. The day after his article was published, Pornhub deleted close to 9 million unverified videos — nearly 70 percent of the content on its site.

With no deterrence from DOJ prosecutions, law enforcement has seen a merger of sex trafficking and the pornography industry online. Old brick-and-mortar pornography studios have been replaced by “amateur” productions. Much of the commercial sex trade has moved from the street to the internet, where monetization and third-party control are even easier. By various coercive means, women and even children are videotaped engaging in sex acts. The videos are then uploaded to online platforms such as Pornhub, where they are monetized. This constitutes sex trafficking under the Trafficking Victims Protection Reauthorization Act, 18 U.S.C. § 1591, the federal anti-trafficking law.

Health professionals are reporting a growing problem of pornography addiction. For frequent users of pornography, there is an escalation effect, meaning they require more extreme or violent porn to generate a dopamine high. Heavy and frequent users of pornography experience changes to their brains. Using MRI technology, we can observe changes in the brains of heavy pornography users, like brain changes in alcoholics and gambling addicts. Pornography is also part of the modus operandi of sexual predators such as pedophiles and groomers to lower the inhibitions of children, setting them up for sexual abuse and exploitation.

It is time to reexamine the 2009 decision that gave the online pornography industry a free pass. Obscenity laws are on the books and can be enforced today. Even a single federal obscenity prosecution would send shock waves through the porn industry and have immediate consequences on both the extreme content and the omnipresent availability to children. How much more harm must occur before federal law enforcement officials act to enforce existing laws to protect American citizens?

Benjamin Bull is the general counsel for the National Center on Sexual Exploitation, the leading national non-partisan organization exposing the links between all forms of sexual exploitation such as child sexual abuse, prostitution, sex trafficking and the public health harms of pornography. On X: @NCOSE