The Problem of Online Porn: It's Already Illegal

United States Supreme Court Justice Potter Stewart famously said in a 1964 opinion that he could not define pornography but “I know it when I see it.” Perhaps such a sentiment was permissible then, when pornography was mostly still photos of naked women or graphic descriptions of sex in novels or comic books. Today, it hardly seems as difficult to make meaningful distinctions. Given the enormous shift in how pornography is produced, distributed, and consumed, it’s time to reconsider the weak way we prosecute what amounts to a harmful, viral drug.

Stewart’s skepticism about defining pornography was part of the liberal revolution in obscenity regulation that set the stage for de-regulating pornography. Still, the decision that undermined pornography regulation actually upheld the conviction of “the king of smut,” Marvin Miller, whom California officials had arrested for distributing illustrated books like Sex Orgies Illustrated.

Chief Justice Warren Burger’s narrow majority opinion in Miller v. California (1972) upheld the state’s obscenity regulation. States could ban obscene material, as Burger announced what became known as the Miller standards: (1) when the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) when a work depicts, in a “patently offensive” way, sexual conduct specifically defined by applicable state law; and (3) when a work “taken as a whole, lacks serious literary, artistic, political, or scientific value.” Hardcore porn could be proscribed, but softcore porn was not deemed obscene.

States as diverse as Idaho, California, New York, Illinois, Texas, Mississippi and dozens more rewrote their general obscenity doctrines to comport with Miller. Most state general obscenity statutes remain unchanged to this day. Adults were still charged under general obscenity statutes in modest numbers until 1990s. In the absence of prosecutions thereafter, making, distributing, or possessing hardcore porn became de facto legal and thus pervasive.

The Federal Response

Prosecutors and investigators focused increasingly on crimes for distributing porn to children or possessing child porn after Miller. Where adults could buy Playboy, selling Playboy to kids could be illegal. The FCC could keep obscene speech off the radio and television to protect children. Local zoning laws could shunt adult bookstores away from school zones and residential neighborhoods where children were likely present. This is how matters stood when the internet was born.

Internet pornography effectively de-regulated obscenity for adults and children. Prior to the internet, pornography cost more to distribute, and consumers had to buy it, which involved spending money and risking shame from public disclosure. Law enforcement efforts to combat obscenity increased the cost, too. 

With the internet, distribution and consumption costs vanished. Finding a chokepoint for law enforcement became more difficult. Add mobile devices to the mix, and many citizens, especially men but increasingly women too, now drink from a firehose of pornography daily. 

Many citizens, especially men but increasingly women as well, now drink from a firehose of pornography daily

Based on the insight that most internet porn was hardcore and therefore proscribed even under Miller, the Bush Administration established an Obscenity Prosecution Task Force in 2005 to investigate and prosecute pornographers for distributing obscene materials. 

After about 100 prosecutions, President Obama shuttered the Task Force in 2011. States have not picked up the slack. Since 2020, I could find very few prosecutions for violating general obscenity laws in the 15 mostly Republican states.

States Focus on Child Access to Porn

Congress and the states sought to update the anything-goes-for-adults-but-protect-the-children approach from the pre-internet era. Congress passed laws to require porn filters on the internet, but the courts shot them down in 1997 and 2004 as overbroad and not the “least restrictive” means of accomplishing the goal, thereby running afoul of the First Amendment. Congress has been mostly out of the game ever since. 

States then built new dykes to protect children. Since 2022, about two dozen states have passed age-verification laws that require porn sites to confirm that users are at least 18 to access content. The Supreme Court blessed age-verification laws in Free Speech Coalition v. Paxton(2025). Three states also require age verification for the purchase of apps to protect children (so far!). Prosecutions for production, distribution, and possession of child porn succeed at higher rates, so resources have gone to support those efforts. About half the states have no age verification, covering about 52% of the American population.

Prosecutors at the national and state levels have retreated from the field of prosecuting general obscenity cases, leaving hardcore internet pornography readily available, though not technically legal. 

Every state has a task force to combat internet crimes against children (to curb the production and distribution of online child pornography, sending obscene pictures digitally, etc.). Nearly every state has a designated task force especially for child sex trafficking (to stop people from recruiting children to participate in porn production). Prosecutions proceed. Nine states have prosecuted more than 100 cases that were investigated by internet crimes task forces since 2020, while six have prosecuted over 100 cases emanating from trafficking task forces, according to my count.

Anything goes for adults, with some protective obscenity regulation and prosecutions for kids—that is the current dual-track pornography scheme. Common sense and social science show the problem with exposing kids to unlimited hardcore internet porn. Yet a whole lot of the internet contains illegal obscene material that is harmful for adults, too. Prosecutors at the national and state levels have nevertheless retreated from the field of prosecuting general obscenity cases, leaving hardcore internet pornography readily available, though not technically legal. 

What Can Be Done?

How do we get states involved in investigating and prosecuting hardcore pornography on the internet? Here are four recommendations:

1. Update the Law

Re-regulating general obscenity at the state levels begins with updating statutes. Statutes should be changed to show that state community standards apply to the internet. Legal definitions of what violates community standards should include descriptions, as in Florida, of deviate sexual intercourse, female genitals, masochism, nudity, sadism, sadomasochistic abuse, sexual battery, sexual bestiality, sexual excitement, specific sexual activities and exhibitions, and others, so as to define state community standards. 

This is often currently done in child pornography statutes, so as to cover that industry with appropriate regulation. Precisely the same thing should be done to clarify and extend statutes for general obscenity. States should deal with the issue of live-camera sexual performances, perhaps under prostitution statutes. Furthermore, states will have to adopt measures to “grandfather” some internet porn out of the law—giving producers and distributors time to make a good-faith effort to remove pornography from the internet. 

2. Record the Harms

Also crucial to such legislative efforts is entering into the record the state’s view of the significant harms caused by internet porn to its citizens. The justification for the updated laws and new emphasis on enforcement should be made a matter of public record so that the porn industry’s lobbyists and lawyers, the Free Speech Coalition, and others, have a substantial public record to deal with when they try to respond. 

3. Enforce the Law

Without enforcement, however, laws will not limit general obscenity. New clarified laws would make way for more confident enforcement. Several states should pilot “An Obscenity Regulation Task Force” (akin to the Bush Administration’s from 2005) to enforce updated state laws. Perhaps even a consortium of states could conduct joint investigations of pornography outfits, big and small. Hiring enough investigators and prosecutors with a clear mandate to enforce state obscenity laws is a sine qua non to any successful anti-porn policy. 

The national government should also revive a General Obscenity Task Force based on the Bush model, since 

4. Set Objective Standards

Eventually, of course, the living approach in Miller is not enough to regulate pornography. Taking bearings from “contemporary community standards” is a recipe for declining family life. As the culture is pornified, community standards decline, making way for ever more decadent obscenity. 

Whether an internet video is “patently offensive” also refers to community standards. Objective standards are necessary. Social science can help with this, of course. Ultimately, however, standards must be civilized and civilizing—pointing sexual desire toward responsible, marital sex. We need to make space for eros but ensure that eros is always elevated toward higher things rather than being stuck in neutral, which is what happens when porn destroys marriage culture and induces male acedia.

Can such an effort succeed in an anything-goes sexualized culture? We’ll know it when we see it. 

Scott Yenor is Senior Director of State Coalitions at the Claremont Institute’s Center for the American Way of Life and a professor of political science at Boise State University.