Washington D.C- Sen. Sam Brownback has no trouble talking about sex. In hearing after hearing, he has brought forward experts in sexual dysfunction, lawyers fluent in the constitutional regulation of sex, and even journalists who have studied American sexual behavior. His concerns are varied, ranging from the horrors of international sex slavery to child exploitation. But on Thursday, he convened his third hearing in just over a year on another sexual topic altogether: porn.
“I think most Americans agree and know that pornography is bad. They know that it involves exploitive images of men and women, and that it is morally repugnant and offensive,” Brownback said, kicking off a hearing of the Senate’s Subcommittee on the Constitution, Civil Rights and Property Rights, which he chairs. “What most Americans don’t know is how harmful pornography is to its users and their families.”
With those words, Brownback kicked off a 90-minute discussion of hardcore sex scenes, self-gratification and its negative impacts. “This is not just a simple, benign form of expression, but rather a potentially addictive substance,” explained one of the subcommittee’s panelists, Jill Manning, a sociologist from Brigham Young University. “People watch a movie, read a book, listen to music, but they masturbate to pornography. In that difference, you have a different stimulation to the brain.”
She went on to explain that the experience of masturbation activates about 14 neurotransmitters and hormones, causing a quick chain reaction of brain activity. “There have been some experts who have even argued that, in and of itself, overrides informed consent when encountering this material,” she said, apparently suggesting that an adult’s own sexual self-stimulation can lead to a loss of judgment. Pornography, she continued, had been shown to increase the risk of divorce, decrease marital intimacy and cause misunderstandings about the prevalence of less common sex practices like group sex, bestiality and sadomasochistic activity. Men are not the only victims. Women, she said, make up about 30 percent of the audience for online pornography.
The problems caused by porn can strike at the heart of a marriage. Another panelist, Pamela Paul, who recently wrote a book about the role of explicit sexual material in American culture, spoke of a fateful decision faced by some married men every day after work: They must choose between masturbating at a computer and finding sexual satisfaction with their wives. “If they go to their wives, well, just practically speaking, they have to make sure they have done all of the chores around the house they were supposed to do. They need to have a half-an-hour conversation about what they did that day,” said Paul. This courtship could take up to an hour and a half. By contrast, she said, it takes “five minutes to go online.”
There was little indication that Brownback’s panelists reflected a full range of views about the impacts of porn, however. “Typical of his hearings, he has stacked the panel,” said Tom Hymes, a spokesman for the Free Speech Coalition, the porn industry’s trade group, which claims to represent several billion dollars in yearly revenue and more than 1.2 million adult Web sites. In a telephone interview after the hearing, Hymes pointed out that porn is widely, and regularly, consumed by consenting adults in each of the 50 states. “Red states, in fact, enjoy the adult material more than the blue states,” he said. “The hotel rooms in Utah, for instance, download more adult movies than any other state. I have that on a very good source.”
At press time, the rate of pornographic viewership in Utah hotels could not be independently verified. But Utah was represented at the hearing. Sen. Orrin Hatch attended a portion of the hearing to voice his support for a clampdown on pornography. He compared explicit sexual material to high-fat food and secondhand smoke, saying this was a “problem of harm, not an issue of taste.” “America is more sex-ridden than any country in world history,” said Utah’s senior senator, quoting a 25-year-old study. “Today, as we enter the holiday season, obtaining the catalog of certain clothing companies will require a photo I.D.”
The only other senator to participate was Russ Feingold, D-Wis., who is a ranking member of the Constitution subcommittee. He told the panelists that he shared Brownback’s concerns over pornography involving children and human sex trafficking. But he seemed more skeptical about the overall tone of the hearing.
“The subject of this hearing suggests that we may be faced with proposals that go well beyond what Congress can constitutionally undertake,” Feingold said.
To date, Brownback has put forward no specific legislation to address the problems he sees with pornography. But he mentioned several possible options, including a law that would encourage families to file civil suits against porn producers if they felt harmed by the material, a strategy that might put Brownback at odds with many of his Republican peers, who have championed restrictions on civil litigation. He also talked about a federal public education campaign, along the line of anti-drug advertising, to inform Americans about the dangers of watching explicit sex.
Finally, Brownback spoke of possibly expanding the law to ban certain types of pornography beyond the current obscenity statutes. But he was repeatedly cautioned by one of the witnesses, Rodney Smolla, the dean of the University of Richmond School of Law, who said that any such effort would likely be shot down by the courts. The Supreme Court, Smolla explained, has been very clear that pornography is entitled to First Amendment protections, unless it is declared obscene.
For a magazine or video to be declared obscene in a particular community, a jury must decide that the material meets three tests: It appeals to prurient interests in sex; it has no political, artistic or scientific value; and it depicts “in a patently offensive way” specific sexual conduct. To make those determinations, jurors are asked to apply “contemporary community standards,” a squishy term that could lead a Texas jury to outlaw soft-core scenes while allowing a California jury to excuse close-up shots of graphic anal sex.
Under this standard, Smolla pointed out, much of the mainstream pornography currently sold in video stores or distributed over cable or the Internet is likely obscene in many communities. The problem was not the law, he said, just the enforcement. “If you double or triple, or multiply tenfold, the prosecutorial efforts, you would see results, no doubt about it,” Smolla said. “The law doesn’t need changing so much as the social will to go after it.”
Attorney General Alberto Gonzales has been trying to do just this, with mixed success. While obscenity prosecutions are up, the Justice Department faced a major setback in January, on the day of President Bush’s inauguration. A federal district judge in Pennsylvania dismissed an obscenity case against one porn company, Extreme Associates, which produces the most offensive types of pornography, including scenes that involve violence, urination and simulated rape.
In his decision, Judge Gary Lancaster cited a recent Supreme Court decision, in Lawrence v. Texas, that claimed a Texas ban on consensual sodomy violated the constitutional rights of adults. Lancaster ruled that the same legal reasoning all but nullified the rationale behind many obscenity laws. “After Lawrence,” the judge wrote, “the government can no longer rely on the advancement of a moral code, i.e., preventing consenting adults from entertaining lewd and lascivious thoughts, as a legitimate, let alone compelling, state interest.”
That ruling, if it is upheld on appeal, could be a death knell to the principal legal remedy pornography opponents now have. In the meantime, however, the Justice Department continues to win obscenity convictions. Just a few weeks ago, Edward Wedelstedt, the millionaire owner of a chain of adult video stores, pled guilty to distributing a video later deemed obscene in Texas, “Tits & Ass #8.”
At the hearing, Brownback nonetheless pressed his witnesses to find ways to expand the legal regulation of whole categories of pornography. He asked the panel’s legal experts if the courts might be moved to whittle away at First Amendment rights in the face of a public health crisis. “Are we getting to the point of evidence where a court would be willing to say this is enormously harmful?” Brownback asked.
“My simple answer is no,” said Smolla.
A few minutes later, the hearing was gaveled to a close, ending, for several months at least, all the official talk about masturbation on Capitol Hill.