A pretty epic battle occurred over the past weekend on Twitter among some prominent conservative commentators on the subject of whether online pornography should be regulated or banned by the government. 

Among the staunchest on the pro-regulation side of the argument were Matt Walsh and Josh Hammer of the Daily Wire.  The argument, generally, was summed up early on by Walsh: “The consenting adults are putting footage of their sexual escapades on a public forum where kids can access it.  They are involving more than just themselves.  That’s the issue.”

As you can imagine, there was there was firm backlash to the suggestion that the government should take action against online pornography as a moral imperative.  Kat Timpf of Fox News provides the gist of the objection: “To be clear: With this logic, you’re arguing that anything that isn’t suitable for children should be banned from the internet,” and later cites alcohol, which can also be damaging to children, but is generally accessible as “many parents have unlocked liquor cabinets.”

I won’t pretend that this is a simple issue, because it’s not.  And I’m sympathetic to both arguments.  But should we demand federal intervention to address online pornography?  Should we enter this political minefield that some conservatives seem eager to enter and explore?  

Perhaps first we should observe that…

Federal regulation of pornography is unconstitutional.

This is the most glaring problem that I have with the suggestion that the federal government should regulate pornography.  Simply consider the most basic argument -- that the Constitution enumerates no power for the federal government to regulate the moral quality of entertainment content that is consumed by American citizens.  

If the Founders wished for the federal government to have such power, they certainly might have enumerated it, as the eighteenth century provided the most morally degraded pieces of entertainment that had been known up to that point.  Yet you’ll find no mentions anywhere in the Constitution, the Federalist Papers, etc., about some pressing need to protect American eyes from salacious content like John Cleland’s Fanny Hill (1748) or the Marquis de Sade’s 120 Days of Sodom (1785). 

I sincerely doubt that the Founders missed the nature of this moral question about depictions of sex like that exhibited in Fanny Hill, for example.  Its author and publisher were arrested in 1749 for “corrupting the King’s subjects.”  And yet the United States’ government was explicitly prohibited from doing any such thing when the Founders crafted their new government.

It should be abundantly easy, therefore, to conclude that such powers were meant to rest with the states, per the Tenth Amendment. 

Next, consider that…

The Commerce Clause does not justify federal regulation of pornography, and it is pure hypocrisy to suggest that it does.

I saw this argument often on Twitter from the “pro-regulate” side of the argument.  But while the notion that the Commerce Clause could justify federal action against pornography is the simplest straw to grasp in order to achieve the goal, it exposes a nuclear-bomb-sized hypocrisy in the conservatives who employ it.

The argument goes like this: because porn is consumed and distributed for profit “among the several States,” it is therefore subject to regulation under the Commerce Clause (which is perhaps the most abused excerpt of the Constitution that is not called the Fourteenth Amendment).

Recall that this argument has been used successfully many times by progressives, perhaps most notably to infringe broadly upon American gun rights.  No sweeping federal gun laws ever existed -- in the entire history of our country -- until 1934’s National Firearms Act (NFA).  The NFA was clearly passed to allow regulation of firearms, but it was not justified on the grounds that the federal government had the enumerated power to regulate firearms, because that intent would clearly run afoul of the Second Amendment.  Instead, it was justified by the government’s right to tax, and because guns were distributed for profit across state lines, the government could levy a tax equal to the purchase price of a tommy gun, for instance, or require fingerprints for the purchase of such a weapon, etc.

The rationale of “commerce” in the NFA was nothing more than a red herring.  It was about the supposed morality of federal gun control -- for the “common good,” as gun control advocates might be inclined to say.  Similarly, any regulation upon pornography by the federal government would not be about the commerce involved, it would be about regulating its morally deficient content and limiting its distribution to advance a “common good.”

It would be difficult to imagine a more frightening prospect for conservatives to entertain in a desperate attempt to achieve this goal of abolishing or regulating online porn.  The suggestion amounts, simply, to “X is sold across state lines, therefore anything having to do with X is subject to absolute regulation by the federal government.”

If one accepts that as fact, it is the purest recipe for tyranny imaginable.  After all, under those assumptions, what can’t the federal government regulate?  And if the federal government can regulate everything, what value has the Constitution or its Tenth Amendment?

If conservatives hope to tackle online pornography, we should take the battle to the culture and states.

Clearly, it might not be as expedient in eliciting change as some conservatives would like, but it would be ideal for the states to craft their own laws regarding moral issues, as they do with public lewdness laws, rather than demanding that the federal government issue one-size-fits-all regulations upon states with very different cultural and moral appetites regarding such regulation. 

Again, consider that the aforementioned English erotic novel Fanny Hill was never banned by the United States government, but it was banned in Massachusetts in 1821, and it was the subject of one of the first “obscenity trials” in our young nation.  It wasn’t until 1965 that Fanny Hill reached the Supreme Court, in which it was decided that the novel was “not obscene,” and not “without redeeming social value.”  Therefore, it was protected by the somewhat freshly incorporated First Amendment.  It was only within the context of the times of 1965, one could argue, that it was found to be “not obscene” and as having some “redeeming social value.”  The Court in 1821 would almost certainly have ruled differently.

That still leaves a lot of gray area for states to work within while deciding what is “obscene,” and therefore subject to lawful state regulation.  What should be observed here, however, is that it was never understood, either by a Supreme Court in 1789, 1821, or 1965, that it was within the federal government’s purview to ban literature, art, or other entertainment due to its sexual content, no matter how little “redeeming social value” it had -- that large expanse of gray area has always been left to state jurisdictions.

Taking this “war on porn” to the culture and the states would be a trench war, and would certainly take time.  But the deck is no more stacked against conservatives in this case than it has been with abortion. And in case you haven’t been paying attention, pro-life conservatives have not been winning on that front by passing lots of sweeping federal edicts regarding abortion.  We are winning on that front by making powerfully moral, reasoned arguments against abortion, winning state legislatures, and challenging Roe v. Wade at the state level in hopes that the errant ruling of 1973 can be overturned.

To be clear, there is currently no Roe v. Wade-sized roadblock suggesting that states cannot, under any circumstances, proscribe certain lewd entertainment content.  Ginsberg v. New York (1968) explicitly suggests that states can regulate the distribution of sexual material to children. 

Perhaps that’s a good place to start if conservatives want to go down this road.  Perhaps they should begin by strengthening the moral case against pornography in the culture, and looking to elicit changes at the state level before demanding federal edicts banning pornography.

Because it should go without saying that cultural morality shifts over time, and it is certainly never going to be uniform among these United States.  As such, the safeguards of the Constitution remain the best avenue to deal with these moral questions. 

And ultimately, this is a dangerous battle for conservatives to fight.  Because there is something disturbingly authoritarian, and I’d have to believe is broadly unpalatable among the general populace, in demanding that the federal government exceed its logical constitutional tether in order to regulate entertainment content for all Americans, everywhere, based upon a strictly conservative perception of morality.