American Worldview on Pornography
Louisiana House Bill 142
I was sent the article Women in the Adult Content Industry React to Louisiana Porn Law: Exclusive and asked for comment. Not being one to shy away from controversy, I agreed to discuss the topic. It also lets me resharpen my legalese from my earlier years of study in law.
Louisiana House Bill 142
The Louisiana law, Louisiana House Bill 142, came into effect on January 1, 2023. The bill provides for holding companies liable “relative to [providing] material harmful to minors.” The law then describes that it applies to distributing such content, either natural, animated, or simulated, on the internet; and provides that a “reasonable age verification system” must be in place for such sites. Many news sites claim it calls out what actions a person can take against such a publisher, but it only says the publisher can be held liable for “punitive damages.”
The news calls it the “porn law” since the bill starts with a paragraph that defines the “hazards” of consuming pornography early in life.
However, there are problematic areas of this law. For example, what is “pornography” and a “contemporary community standard?”
Kevin Michelizzi and the team will discuss this article on Episode 18 of Scenes from the Evolution.
Pornography and Community Standards
Pornography is “the depiction of erotic behavior intended to cause sexual excitement.” Though the law speaks about the dangers of pornography on society, the term they use is “ prurient interest,” meaning “showing too much interest in sexual things.” Prurient is a term taken from the supporting case law, but suffice it to say that the closest definition we get is “ obscene,” which must apply to community standards, to be precise.
And just what are “contemporary community standards” anyway? They vary from city to city, state to state, and nation to nation. I would even say the standards differ from person to person.
I will not go into the specifics of the supporting US Supreme Court case laws on this subject. Still, you can read Some Unanswered Questions About the Application of the Contemporary Community Standard for information on how vague the definitions of pornography, prurient (passionate), contemporary community standards, and obscenity are today.
I will leave it as stated in the 1972 Paris Adult Theatre I v. Slaton case: “The problem is, rather, that one cannot say with certainty that material is obscene until at least five members of this [US Supreme] Court, applying inevitably obscure standards, have pronounced it so.”
Age Verification
One of the mandates in the new law is that all such covered sites must do age verification. However, the requirement is weak, as even the dullest teen knows how to take an ID or credit card from their parent’s wallet or purse and use it to get into a site.
The law also says that the company doing the verification cannot keep any identifying information of the person after they give access. If the company does not save any identifying information, it cannot prove in court that it did the verification. There would also be no way to verify the company did not do the verification.
Exceptions
The law also has equally vague exceptions. For example, the law only applies if a “substantial proportion” of the content (more than 33.3%) is “harmful to minors” and does not apply to news or public interest content.
Bona Fide News and Public Interest
One exception is for news and public interest. News stories may be easier to define, but public interest is unclear. If men are interested in naked women, would porn be in the public interest? The wording probably refers to museums and artwork, but even the legality of such works is debatable. Since some art is erotic, and erotic relates to sexual desire and pleasure, the law could ban that art. We again fall to the obscenity question.
Porn on Twitter
The original article quotes adult entertainment star Allie Rae saying children can go onto Twitter and “see it all.” However, because of the 33.3% rule, we know that the law does not apply to Twitter. Even with the growing amount of “porn” on Twitter, it does not make up more than a third of the content on the platform. Also, Twitter would not be liable under the law – only stars like Mrs. Rae would be since they put the content on the site.
In my opinion, content put on sites like Twitter is a more concerning issue. I never used to see anything related to nudeness on Twitter. I started seeing the occasional bare breast when Elon Musk took control of the company. Now that I have researched “Twitter porn” for this article, Twitter is filling my inbox and newsfeed with unwanted naked breasts, naked dancing teenagers, and other objectionable (to me) material from Twitter. We must ask ourselves why the government is concerned with sites like PornHub, but not the sexually explicit blitz in social media platforms like Twitter.
US Worldview
Let us also consider that this is all a US view of pornography. The laws vary from state to state, and nobody agrees on what pornography is other than it lacks literary, artistic, political, or scientific value.
But we also have other countries to consider, especially in the internet realm. If the person putting up pornography is outside Louisiana, or the United States, I am not sure how this law applies to them. And we must ask if their views count as contemporary community standards.
Note: the following links may contain sexually explicit material that is illegal in your locality.
In Finland, the Tom of Finland Foundation publishes artwork of “hypersexual men.” We also have New Zealander Mr. Gruts, Japanese Erotica, and erotic comics in the UK. I will not mention marble sculptures by DaVinci and others.
In international society, the definition of pornography, obscenity, and contemporary community standards is become more challenging to define.
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