Did Conservatives Get Pornography Regulation Wrong?

In 2005, about one-third of adult Americans had high-speed internet in their homes. The rest relied on dial-up or didn’t have in-home internet access at all—and the iPhone, of course, had yet to be invented. That year, the George W. Bush administration leaned heavily on a global regulatory agency that ended up having long-lasting ramifications for what kids are exposed to online. 

With the benefit of hindsight, some anti-pornography activists pushed for a strategy that ended up being inadequate. Instead of trying to regulate porn into a cordoned-off zone online, some advocates encouraged a zero-tolerance policy that was, as it turns out, doomed to failure. These are lessons today’s social conservatives should learn from.

Some background: The Internet Corporation for Assigned Names and Numbers (ICANN) is the global body responsible for assigning domain names – like how government websites end in .gov, colleges and universities end in .edu, and British sites conclude with .uk. In 2005, it was considering a proposal that would have created a specific top-level domain for sexually explicit content: .xxx. 

Initially, the Bush administration considered endorsing the proposal for a mandatory .xxx domain, requiring adult-oriented sites to put their wares behind age-gated virtual bars. But Michael Gallagher, then-assistant secretary at the Commerce Department, weighed in, noting in a letter to ICANN that his Department had received “nearly 6,000 letters and e-mails from individuals expressing concern about the impact of pornography on families and children.” The project was delayed, then tabled. 

Freedom of Information Act records compiled by Syracuse University show that the Commerce Department was under heavy pressure from religious and conservative groups who wanted the federal government to take a strong stand against internet pornography, and opposed the adoption of a .xxx suffix. According to emails released later, longtime social conservative leader James Dobson met with the White House’s senior political advisor, Karl Rove, asking the Bush administration to oppose the idea of a pornography-specific domain name. 

Giving sexually explicit content online its own top-level domain, it was argued, was sanctioning it. “Pornographers will be given even more opportunities to flood our homes, libraries and society with pornography through the .xxx domain,” worried the Family Research Council. Instead of giving into the demands for an adults-only domain, it was better to oppose the spread of online pornography all together. 

Ironically, they were joined by some of the biggest names in adult entertainment. “We're not a believer of .xxx,” Michael Klein, president of Hustler, said later. He complained that the domain would make it too easy for governments or corporations to censor, and that the idea of a .xxx domain was dangerous to his ability to find an audience: “We don't think it should be out there.”  

Interestingly, 2005 wasn’t the first time ICANN had denied such a proposal. In 2000, the committee denied an application for a mandatory .xxx domain, and was criticized by then-Congressman Fred Upton (R-Mich.) and then-Senator Joseph Liebermann (D-Conn.,) who saw the top-level domain as a means of protecting kids online. The porn industry vigorously protested such a registry. Five years later, conservatives would be joining in the opposition. 

In effect, social conservatives were pursuing a strategy of prohibition right when technology would make the slowly loading browsers of the early 2000s obsolete—and give every laptop and PC the ability to make a virtual visit to the Playboy Mansion. Smartphones would be introduced mere months later after ICANN’s original decision. The strategy of refusing to “legitimize” online porn by regulating it failed. Eventually, after a panel of judges found ICANN had erred in not adopting the domain, the organization eventually adopted a strictly voluntary, rather than mandatory, system for adult content in 2011. 

Our country’s First Amendment jurisprudence puts limits on how aggressive any policy that would stem pornography online can be pursued. In 1969's Stanley v. Georgia, the Supreme Court held that the Constitution implies a "right to privacy," invalidating state laws that barred possession of pornography. Reno v. ACLU (1997) found that a law barring the transmission of "obscene or indecent" content was unconstitutional. 

Some legal scholars disagree with the Court’s interpretation of the First Amendment. Sen. Mike Lee (R-Utah, and my former boss) has introduced legislation that would directly challenge the definition of “obscenity” set by Miller v. US (1973). It would define content with “the objective intent to arouse, titillate, or gratify the sexual desires of a person” as “obscenity,” and therefore able to be blocked from interstate or foreign transmission. 

But in our current landscape, where online pornography is pervasive and enjoys substantial legal protections, putting legal force behind a method of identifying websites that house explicit content is an overdue idea. Congress should explore methods of requiring websites that host sexually explicit content to identify themselves as such. 

While a top-level domain, like .xxx, could have been a plausible approach a decade ago, technological and commercial advances mean it would be less effective now. One approach could be building on a voluntary “Restricted to Adults” label many adult-oriented sites have already adopted. Tagging one’s site with this metadata allows a web site owner a degree of legal protection if the FBI receives a report that the site has hosted child sexual abuse material. Because many adult sites are hosted internationally, this would apply mainly to US-operated sites, but could be built upon through international agreements or by making it a condition of doing business with US payment processors.

Requiring this for all sites would make it easier for internet service providers or browsers to identify and block sites that families don’t want kids (or adults) accessing. And the Reno v. ACLU case that allowed pornography to colonize the internet even allowed for such an approach, once the technology had advanced. In her concurrence, the late Justice Sandra Day O’Connor proposed that sufficiently-advanced age verification could create a type of “zoning” to ensure that “adults are still able to obtain the regulated speech…[and] keep children away from speech they have no right to obtain.” 

Importantly, this approach would build on the growing momentum around age-verification to view explicit content. Only users who prove they are of age could access said material without restrictions. For those seeking to prevent their children from stumbling across sexual content while scrolling social media, or simply make it a little easier to avoid temptation, those websites would be unavailable. 

There’s a broader lesson to be learned from the thwarted attempt to create a virtual “red-light district” for online porn in the mid 2000s. Academics like to talk about the “bootleggers-and-Baptists” coalition that would advocate for Prohibition. That dynamic got an update for the 21^st century—call it “Puritans and pornographers”—that fought against the creation of a .xxx domain until such a proposal was too little, too late. Opposing any regulation in the name of not wanting to be seen as blessing an unfavored behavior is a recipe for obsolescence, particularly with sweeping technological change on the horizon. 

If they could do it over again, conservatives might re-consider the upsides of permitting an “adults-only” section of the Internet, and creating the legal expectation that other, non-age-gated areas of the web be free from explicit content. With even liberal parents concerned about rampant access to online porn, it’s not too late for Congress to get creative about ways to segregate adult content from the rest of the web.

Patrick T. Brown (@PTBwrites) is a fellow at the Ethics and Public Policy Center. He writes from Columbia, South Carolina.   

Editor’s Note: The opinions expressed in this article are those of the author and do not necessarily reflect the official policy or views of the Institute for Family Studies.