From Bacchus to broadband
A brief history of media regulation, obscenity laws and the internet
From Greek pornographos "(one) depicting prostitutes."*
Upon the discovery of the ancient temples of Bacchus, 19th century archeologists coined the term pornographie, from the Greek pornographos, “depicting prostitutes” to describe the ancient obscene paintings. There was nothing quite like it in their day. In 1843 an American scholar described it with a tone of condescension, speculating on the permissive societies which allowed for it.
Pornography, or obscene painting, which in the time of the Romans was practiced with the grossest license, prevailed especially at no particular period in Greece, but was apparently tolerated to a considerable extent at all times.
Almost two centuries later, the future is beginning to look like the ancient past.
This essay defines pornography in three parts alongside the decline of public decency through the sexual revolution and deregulation of media in the modern era.
The first section provides the background for modern media regulation and definitions of obscenity in broad strokes, from the austere origins of the Federal Communications Committee to its devolution on Music Television (MTV).
The second part demonstrates how the growth of unregulated internet spaces facilitated disproportionate levels of paraphilia online as evidenced by the failure of federal agencies to prevent the proliferation of child pornography.
The third part reveals the monetary incentive behind free porn and gives a brief overview of the ongoing battle to restore order to the internet, with some final thoughts on potential solutions.
Historical background 1934—1996
With the growth of the internet, U.S. legislature recognized the need for an entirely new set of laws. Existing regulations for interstate and foreign communication had been determined by the Communications Act and the Federal Communication Committee (FCC) of 1934, when radio was still the dominant form of media communication and expanded over the decades to include television, satellite and cable communication. It was an era of innocence for the United States, when the definition of obscenity was so broad, that pregnant women were not allowed to be shown on TV. Married couples were depicted as sleeping in separate beds. The Communications Act reflected the belief that every aspect of broadcasting should be in the public interest. The FCC was intended to oversee the industry, preventing monopolies while maintaining traditional values in public discourse and entertainment.
In the 1950s, pornography was primarily underground and largely illegal in the United States. Strict obscenity laws kept the most explicit material hidden from the mainstream, often in the form of "nudie" magazines and looped films shown in adult theaters. The rise of the "pin-up" culture offered a glimpse into changing attitudes toward sexuality, exemplified by figures like Betty Page, “Queen of the Pin-ups.” Many works featured glamour models in suggestive poses rather than explicit sexual acts. For Page, this was totally consensual and professional work. She was proactive in her career, negotiating contracts and maintaining control over her image. Nevertheless, in 1955 she was summoned to testify in the “Kefauver Hearings,” officially known as the Senate Special Committee to Investigate Crime in Interstate Commerce, and accused of producing pornography. The moral condemnation she faced from conservative groups and the media took a toll on her mental health. She withdrew from the public eye in the 1960s and tried to distance herself from her past, eventually becoming a born-again Christian and living a quieter life. However, her images remain as part of the public domain, and resurged in popularity throughout her lifetime.
Overall, the 1950s set the stage for the more permissive attitudes that would emerge in the following decades, particularly during the sexual revolution of the 1960s and 70s. On June 12, 1972 Deep Throat, a landmark pornographic film premiered at the World Theater in New York. The film lasted an hour long, featuring multiple actors, seven acts of fellatio and four acts of cunnilingus. The entire cost of production, including music, totaled $47,500, supplied by a member of the Colombo crime family. The movie was marketed as a revolutionary work to huge success. It became known as the premier of the “golden age of porn,” or “porno chic” by which pornographic films became a popular genre amongst the upper-middle class. It would be many years before “Linda Lovelace,” the star actress of the film, explained the glimpses of bruises on her legs were from her husband. A marriage which she later claimed had been plagued by violence, rape and forced prostitution.
While the upper-middle class rushed to embrace the porno-chic movement, the general public could not make up its mind. Across the country juries came to different conclusions on whether or not the film qualified as “obscene.” Two months after its premier, a jury in New York City declared that it was not obscene. Determined to make their point, prosecutors tried again, this time suing the theater itself. The case became famous for its expert witnesses, including a psychiatrist who defended the depiction of oral sex as “normal behavior,” and a film critic who argued it was valuable for its humor and Feminism. The judge ruled against them, calling it a “feast of carrion and squalor.”*
Nevertheless, the sexual revolution was in full swing. On the other side of the continent, a California man was convicted for mailing unsolicited brochures for his adult movies en masse later that year. Swearing that the conviction violated his freedom of speech, Miller V California was brought to the Supreme Court. The case established three criteria for obscenity based on community standards, human dignity (what is “patently offensive”) and cultural value, and yet the Court barely upheld California’s decision with a vote 5-4, stating that the First Amendment does not apply to “obscene” material. Over the ensuing decades, zoning laws emerged, restricting adult shops to non-residential areas, far from schools and playgrounds frequented by minors.
During the 1980s and 1990s, the FCC faced challenges related to the rapid expansion of cable television, which introduced new competition for traditional broadcasters and complicated content regulation. Meanwhile, there was no going back on the sexual revolution of previous decades. The content that aired on cable became increasingly risqué, if not x-rated, from the Playboy Channel to Sex in the ‘90s on MTV. Over the course of sixty years, the long shadow of the FCC had taken on the form of the boogie man to its grandchildren. Now, with the birth of the internet, legislators planned a complete overhaul. The push for deregulation finally came to a head with the Telecommunications Act of 1996.
From its origins in the Great Depression, the first Communication Act was the embodiment of austerity with its emphasis on regulation to preserve and protect national morality. From the height of America’s global power, the Telecommunications Act of 1996 was all but a complete reversal. The new media economy at the turn of the 20th century was yet another manifest destiny, an era of laissez-faire. By deregulating the market, legislators hoped to encourage competition, innovation and universal connection, turning a blind eye to the rise of new monopolies.
The millennial perspective 1996—2008
Public morality had been central to the Communications Act of 1934, in 1996 it was an afterthought. As an appendage to the Telecommunications Act, the Communications Decency Act (CDA), aimed to regulate online content and protect minors from exposure to pornography. It mandated that internet service providers and website operators take steps to restrict access to such content, imposing penalties for disseminating “indecent” or “patently offensive” material. The CDA was a paradoxical caveat. In a bill designed to promote competition and innovation, the CDA aimed to impose content regulations. In an era marked by liberalization and the rise of digital communication, the CDA sought to enforce conservative values. Within a year the CDA came under fire. The case was Reno v. American Civil Liberties Union. Among the plaintiffs were the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation (EFF) and concerned internet users, mostly digital artists who worried that the overly broad language of “indecent” and “offensive” would curtail freedom of speech online. The defendants were U.S. Attorney General, Janet Reno, and the Department of Justice.
At the dawn of a new technological age, the justices opined about the technical and constitutional impossibilities of monitoring the internet, or the potential of creating restricted adult-only zones online. A dissenting voice, Sandra Day O’Connor took up a centrist position.
In a futuristic vision of technological possibilities, O'Connor suggested that the internet could develop a child-free, adult-only zone that only people of a certain age could access. She felt that this could have an impact on whether the First Amendment protected certain types of explicit content that was made more generally available. It might be parallel to cases in which courts evaluated zoning ordinances that prohibited adult entertainment in certain areas.*
The majority ruled that the First Amendment could not wait on the development of futuristic technologies. The court ruled 7-2 in favor of the ACLU. The CDA was gutted, leaving nothing but a shell. The message rang loud and clear, a new frontier had opened online with the highest level of freedom granted by the federal court. It granted immunity to internet providers for user-generated content, putting the onus of moderation on website owners. As for what merited government intervention, the Child Pornography Protection Act of 1996 (CPPA) set the limits of the law in the extreme. In 2002 this too would be contested.
Whereas Miller v California had drawn the line at public obscenity, future debates struggled where exactly to draw the line at child pornography. Once again, the ACLU led the charge in Ashcroft v. Free Speech Coalition. The CPPA had broadened the definition of child pornography to include fictional depictions of child abuse, whether it be written, illustrated or computer generated. The Free Speech Coalition (FSC) worried that an overly broad definition of child pornography would have a “chilling effect” on artists, writers and film makers, discouraging them from exploring certain themes. Instead they argued, the law should focus on protecting actual children, rather than punishing the creation or possession of fictional material. The court ruled 7-2 in favor of the FSC and struck down the overly broad CPPA, forcing lawmakers back to the drawing board. Meanwhile, the next case was already brewing.
The ease of online file-sharing allowed for the retransmission of untold numbers of images to be used as templates in user-generated pornography. A well-known example of this behavior is "celebrity porn," which involves merging images of celebrities with pornographic content, resulting in altered photos that depict the celebrities in explicit scenarios. Fetish communities flourished in plain site online, as computers gave the most anti-social members of society to produce and distribute such content without consent, detaching themselves further from reality in the process, disembodied through the internet.
In 2003 a new bill was passed, Prosecuting Remedies and Tools Against the Exploitation of Children Today Act (PROTECT). The PROTECT Act provided clearer definitions of what constitutes child pornography, along with harsher penalties and enhanced legal tools for investigation and prosecution. In 2001 a Florida man had been convicted of selling fictional child pornography online. It took seven years for his case to make it to the Supreme Court. At last, the Supreme Court had reached its limit. In 2008 Michael Williams was convicted for violating the PROTECT Act. For the first time, the court prioritized child protection over free speech on the internet.
Justice Scalia delivered the opinion of the court. In his explanation, Scalia cited the impossibility of distinguishing between real and fake images.
The emergence of new technology and the repeated retransmission of picture files over the Internet could make it nearly impossible to prove that a particular image was produced using real children—even though “[t]here is no substantial evidence that any of the child pornography images being trafficked today were made other than by the abuse of real children.*
Thirty-seven years earlier, the Miller v. California ruling had stated that obscene material is not necessarily protected by the First Amendment. The Telecommunications Act of 1996 had pushed the definition of obscenity to extremes. In the absence of “futuristic technology,” the digital frontier was as wild as the Wild West, rife with exploitation. Perhaps the greatest and most common oversight was referred to in the curious phrase of Justice Scalia: “the repeated retransmission of picture files” used to generate fictional content, which raises serious concerns about the right to privacy and the lack of consent.
Futuristic visions 2010—2017
In the past, opposition to pornography was predominantly voiced by the religious right and radical feminists, who often framed it as immoral and misogynistic, respectively. However, in recent years, the opposition has expanded to include a broader range of voices, including men’s groups, mental health advocates, and various community organizations. These newer groups often highlight issues like the impact of pornography on mental health, relationships, and societal norms, reflecting a more diverse array of concerns surrounding the topic.
Despite the increasingly diverse coalition opposing pornography today, many advocates of free pornography remain oblivious to its harm. Some say pornography is the natural human condition. They aren’t afraid to admit to using it themselves. To them, pornography is only a problem for people who make it a problem. The younger, more zealous advocates consider themselves revolutionaries. To them, universal access to porn is a matter of sexual health, a weapon with which to battle the patriarchy and empower sexual minorities. Often, they are its greatest victims. What both groups take for granted is the historical context of media regulation and the evolution of the internet which informs the current state of pornography.
Twenty-seven years ago, the ruling in Reno v. ACLU rendered legal barriers requiring age verification or credit card information unconstitutional, allowing millennials to become the first generation exposed to unregulated obscenity. For boys growing up in the 2000s, names of websites like xHamster, Pornhub, and ImageFap spread by word-of-mouth in public schools. With the rise of smartphones the percentage of pornography accessed on these devices surged. According to Pornhub insights:*
With the ease and accessibility of our smartphones and being able to take them anywhere you want in your pocket, 91.3% of all traffic comes from mobile devices now.
What they don’t share is what percentage of uploads come from mobile devices, as numerous incidents of men and women arrested for filming with smartphones in public spaces emerge. Future law efforts dedicated to restoring public decency might consider the accountability of websites and social media apps which encourage users to upload explicit videos directly to their site from mobile phones. Until then, the profit-incentive makes it highly unlikely the market will regulate itself.
In the 2010s a cautionary phrase emerged:
“If you’re not paying for the product, you are the product.”
The Telecommunications Act of 1996, with its emphasis on free speech, ironically paved the way for corporate monopolies on user data. Platforms like Pornhub meticulously track user behavior, recording every click and keystroke. No surprise that such prestigious institutions as Cornell University have shown keen interest in the business model, owning shares in MindGeek, the parent company of Pornhub. Individual websites aren't the only ones gathering data. The ultimate power lies in the hands of Internet Service Providers (ISPs). ISPs handle all of our network traffic, leaving us with little choice. While the data obtained by individual websites and apps is limited in scope, an ISP gets a full picture of our private lives online. Not to be outdone by companies like MindGeek and Meta, which turn user data into a profit with targeted advertising, ISPs offer complete user profiles on the data market, albeit stripped of identifying information.
The first attempts to reign in the power of ISPs began in 2010, with the Open Internet Order. Four years later the rule was overturned. The second attempt at regulating the internet came in the form of the “Net Neutrality” rulings of 2015, which officially classified broadband service as a “telecommunications” service under Title II of the law.* This classification restored oversight to the FCC, and brought U.S. legislation more in line with the style of countries in the European Union, which reflect the view that access to the internet is a fundamental right, subject to government regulation. In Germany, for example, adult websites like Pornhub adhere to policy requiring age verification. In the U.S. the net neutrality ruling came under immediate attack by Republicans, who characterized net neutrality as being essentially socialistic, calling it “heavy-handed utility-style regulation,” and rallied to the cause of “American capitalism.”
In 2017, net neutrality was rolled back through the Restoring Internet Freedom Order. The declaratory ruling begins with a salute to the Telecommunications Act of 1996.
Over twenty years ago, in the Telecommunications Act of 1996, President Clinton and a Republican Congress established the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.”*
Under this auspice, it seems unlikely that federal courts or Congress will reconsider their ruling against the CDA anytime soon, and require official age verification to access adult websites.
Without government intervention, the market provides only incomplete solutions. ISPs and smart devices have developed parental controls that can restrict access to adult-rated material on certain networks or devices. Some new adult platforms have implemented age verification measures on their own accord. Hypothetically, sites like OnlyFans, empower individual performers over studios and users alike, improving the situation for sex workers. Paradoxically, this may encourage more young women into sex work, leading to further decline in public decency as their attempts at promotion spill over onto social media and the streets. Meanwhile, many less reputable websites use dynamic URLs, encrypted HTTPS, misleading labels, and user-generated material that can slip through parental controls, leaving children exposed to inappropriate material. Even if this method were perfect, it leaves children from broken families completely exposed, exacerbating the disparity in sexual exploitation between the classes.
As seen by the long march of institutions, words matter. Clear definitions are a prerequisite to law. As such, grassroots education is vital to restoring public decency. Educational programs can inform parents and guardians about the importance of proactive measures, such as enhanced parental controls and age verification, while also fostering discussions about healthy relationships and consent. Historical knowledge and study of the law can equip communities with the language needed to craft successful legislation. By cultivating a well-informed public, grassroots education can help shift societal attitudes towards viewing the internet not just as a platform for freedom, but as a shared responsibility that requires vigilance and care.