In the past two years, battles over online pornography have escalated. In December 2020, Mastercard and Visa announced that they were discontinuing service to the popular adult content site Pornhub. Then, in March 2021, Utah Gov. Spencer Cox (R) signed a measure requiring tablets and smartphones sold in the state to automatically enable filters blocking pornography and other “material that is harmful to minors.” The law goes into effect if five states pass similar laws. Several months later, the popular Internet subscription service OnlyFans announced that it would prohibit all pornographic content.
Backlash from content creators and sex workers prompted OnlyFans to reverse course. Yet efforts to ban online pornography are growing in strength. In fact, in recent months, lawmakers in Arizona introduced legislation nearly identical to the Utah law, and the banking industry successfully pressured online pornography platform AVN Stars to shut down.
High-profile skirmishes over online pornography are microcosms of the broader debate raging over Internet regulations. Large swaths of the American public, along with federal regulators and political pundits, have adopted the view that the Internet is unchartered — and untamable — territory.
But when it comes to pornography, the debate is anything but new. For over a century, government officials, concerned citizens and erotic media producers have wrestled over the distribution of pornography via platforms ranging from the U.S. mail to the telephone to cable television. These battles offer a cautionary note as lawmakers grapple with how to regulate the Internet. While proponents historically have sold tools to limit pornography as ways to protect public safety and national morality, multiple generations have wielded them more as weapons against LGBTQ communities and political radicals — with devastating effects.
In 1865, Congress passed the first law banning “obscenity” conveyed by mail in response to reports that Union soldiers received large numbers of pornographic books and photographs through the mail.
Eight years later, anti-vice reformer Anthony Comstock lobbied for harsher restrictions on all forms on obscenity, arguing that pornography posed an existential threat to the nation’s youths. This effort culminated with the 1873 passage of the Comstock Act, which banned the transmission of pornography, contraceptives and other sexually explicit materials through the mail.
Appointed as a special agent in the Post Office, Comstock led a ruthless campaign to cut off the flow of sexually explicit material. But he also used the powers afforded by his law to systematically target and arrest members of the free love social movement, whose advocacy for gender equity and against the institution of marriage earned Comstock’s ire. He waged a multiyear campaign to censor literature promoting women’s sexual autonomy and to penalize the free lovers who mailed these materials. This push solidified opposition to the free love movement and resulted in a Supreme Court ruling upholding much of the Comstock Act — even as the campaign for women’s liberation persisted.
Changing social attitudes toward sexual expression and liberalized court rulings in the first half of the 20th century gradually weakened the legacy of Comstock’s censorship regime — until everything changed after World War II. Fears about the sexual corruption of youths and a sharp rise in mail-order pornography ignited a public backlash and renewed anti-pornography efforts at the Post Office.
This was also the era of the “Lavender Scare” — the campaign led by Sen. Joseph McCarthy (R-Wis.) to purge gay men and lesbians from the federal workforce for fear that they posed a security risk either due to communist sympathies or susceptibility to blackmail. McCarthy’s efforts intensified the stigma against gay and lesbian Americans, and in this climate, their publications, some sexually explicit and others not, became prime targets for the Post Office. In an initiative spearheaded by Postmaster General Arthur Summerfield in 1959, postal inspectors persecuted gay publishers and consumers across the country, often with devastating personal and legal consequences. Routine intimidation of the Adonis Male Club, a gay male pen-pal service, for example, led some to take their own lives for fear of the consequences of an obscenity indictment.
This campaign continued until Lynn Womack, publisher of several popular gay physique magazines, challenged the Post Office’s claim that nude male publications were inherently obscene, ultimately winning his case in the Supreme Court in 1962.
This victory and several later Supreme Court decisions, including a 1967 ruling that protected the right to sell pornographic material to consenting adults, afforded new free speech protections to pornography. At the same time, however, these gains for advocates of sexual freedom galvanized conservative lawmakers to pass legislation that armed citizens with new mechanisms for blocking materials perceived as pornography. In 1967 and 1970, Congress passed Anti-Pandering Statutes that circumvented the First Amendment by allowing individual citizens to issue “prohibitory orders” blocking anyone from sending unsolicited sexually oriented, erotically arousing or sexually provocative mail-order advertisements to their homes.
While nondiscriminatory in intent, these laws were systematically used to target LGBTQ and antiwar publications. Across the country, ordinary people and those with legal and political power, including judges and members of Congress, filed prohibitory orders against gay and lesbian periodicals and underground military newspapers on the grounds that they were “sexually provocative.” The organizations receiving these orders faced potential legal ramifications from accidental delivery and bore the cost of implementing the measures. Many spoke out publicly in opposition to what they saw as unfair and biased treatment.
As new technologies made print-based pornography increasingly obsolete in the 1980s, the battleground shifted to the next generation of communications platforms: telephones and cable television. Fearing that these platforms would make pornography accessible to both children and unsuspecting adults, lawmakers plotted to censor “dial-a-porn” and “cableporn” — the commercial phone sex industry and pornography on cable television.
Despite opposition from free speech advocates, in 1989, Congress implemented a “reverse blocking” system which required phone customers to affirmatively opt-in to access dial-a-porn services. And 1996 legislation mandated that all televisions manufacturers equip all televisions made in the United States with v-chip technology that allowed a user to block specific program categories — namely, violent and pornographic shows.
As was true of the postal campaigns from decades prior, these laws disproportionately affected the LGBTQ community. Conservative media activists frequently attacked LGBTQ content on the telephone and television as pornographic — regardless of whether it contained actual sexual content. The ensuing public outrage, combined with the new laws and the willingness of Congress to act, often compelled businesses to censor platforms on their own. American Express, for example, canceled its merchant account with the popular gay phone sex line, The Connector, in January 1983, but continued business with similar heterosexual services.
With the v-chip, LGBTQ programs faced systemized censorship because they were more likely to be rated for older audiences and thus subject to blocking. The debate about television filtering erupted in 1999 when conservative Rev. Jerry Falwell claimed that Tinky Winky, the popular Teletubbies character, was gay and that such “sexual innuendo” was inappropriate for a G-rated show.
By the mid-1990s, the Internet eclipsed almost all other debates about the regulation of pornography. The courts overturned the first Internet pornography regulations due to free speech violations. But in 2000, Congress passed legislation mandating that all schools receiving federal funds use filtering software to limit access to sexually explicit online content. Like the v-chip, this software was often used to block access to a wide range of information, including non-pornographic material related to the LGBTQ community and sexual orientation. Only lawsuits in states like Tennessee and Missouri forced school districts to grant access to constitutionally protected information on the LGBTQ community.
More recent efforts to block Internet pornography have also perpetuated these historical exclusions. In 2018, Congress passed a legislative package, FOSTA-SESTA, intended to curb online sex trafficking. While regulators rarely use the law, its passage led many platforms, including Tumblr, Craigslist and eBay, to crack down on a range of consensual pornographic and sexually explicit material. This has had particularly adverse effects on the livelihoods of sex workers and the availability of LGBTQ media.
Questions about how best to prevent exploitation and regulate online pornography are only growing. This history provides clues as to the answer. Crafting policy solutions that allow individuals to choose how they encounter pornography online while also preserving free speech rights is possible. But only if lawmakers work collaboratively with the marginalized communities — including sex workers and LGBTQ people — most frequently subjected to censorship under anti-pornography legislation.