NASHVILLE – For the second time in recent months, Tennessee State Sen. Mae Beavers has proposed a joint resolution to “recognize pornography as a public health hazard leading to a broad spectrum of individual and public health impacts and societal harms.”
As you might expect, the measure is similar in both its language and intent to another resolution passed in Utah last year. The two are so similar, in fact, the exact language quoted above from the Tennessee resolution is present in the Utah version.
As is the case with the Utah version, Tennessee’s resolution is nonbinding and creates no new law or policy with respect to pornography. In terms of their practical effect, these proclamations have no impact on existing law or policy; they represent the conclusions of the legislatures which passed them — or of the specific legislators who voted to approve them, at any rate.
The conventional wisdom seems to be such resolutions are little more than rhetorical devices (or as Lee Rowland from the ACLU put it, an “empty gesture”) designed to placate social conservatives who are frustrated by a lack of government action where curbing access to porn is concerned.
Proponents of the bill, however, see these resolutions (and related proposals to mandate pre-installed content filters on digital devices) as means to build momentum for increased enforcement of obscenity laws — and perhaps the establishment of new laws to regulate and restrict access to porn, as well.
“This represents a turning of the tide against pornography,” said Dawn Hawkins, executive director for the National Center on Sexual Exploitation, after the bill was signed last year. “As the harms become apparent, both the general public and elected officials will demand that a multi-disciplinary public health approach be implemented across the country to address it.”
While a “multi-disciplinary public health approach” doesn’t necessarily have to include any changes to existing law or policy directly relating to pornography, it’s not unreasonable to wonder if such changes are part of the response those like Hawkins would like to see.
Along those same lines, would the widespread adoption of resolutions like Utah’s actually carry any weight in the mind of a judge?
For example, if the current Congress were to pass some new legislation similar to the Child Online Protection Act, would the existence of multiple state resolutions declaring porn a public health crisis weigh in the court’s analysis of the law?
“Non-binding resolutions would not substantially impact the constitutional analysis, if a future law was challenged,” said Larry Walters of the First Amendment Law Group.
“It is possible that a reviewing court could look to these resolutions when evaluating the existence of a substantial/compelling governmental interest and use the findings in the resolutions to support the constitutionality of a law restricting First Amendment rights,” Walters added. “But these resolutions are more for political purposes and used to support and motivate a particular viewpoint in the culture wars.”
Absent some major (and unexpected) shift in the court’s disposition toward interpreting existing case law, then, we’re left with the “empty gesture” Rowland referenced. However empty critics may find the gesture, though, there’s no doubt it is being well received by its intended audience — a constituency not limited to the right wing.
“Given what’s happening with pornography, given that it’s now the major form of sex ed, given that hardcore pornography is now mainstream porn, then there has to be a public-health approach,” said left-leaning anti-porn activist Gail Dines last year in response to Utah adopting its resolution. “The beauty of a public-health approach is that it causes a paradigm shift.”
Will the paradigm shift include a change in law? Not likely, if the new law runs afoul of the same legal precedents and concerns that sank COPA. The thornier question, of course, is whether the government needs any new legislation in its quiver to fill members of the adult industry with prosecutorial arrows.
Given existing tools like 2257 regulations and the possibility of prosecuting defendants under existing obscenity law (which can be entirely ruinous to defendants even if they’re ultimately acquitted), all a prosecutor bent on crusading against porn really needs is a prospective defendant and the will to proceed.
As there’s always going to be an ample supply of the former, let’s hope in the months and years ahead not many prosecutors are emboldened by “public health concerns” into developing the latter.
