Porn is everywhere. Whether soft or hardcore, it’s in ads, on Reddit, on Instagram, Youtube, and in nearly every movie. Its inescapability and prolificity have led many to call for legislative action. On Friday, Matt Walsh of the Daily Wire, wrote an article defending Republican lawmakers that are fighting to make hardcore porn illegal.

After many conservative and libertarian readers attacked Walsh, he responded to their criticisms with an article furthering the debate which then broke out on Twitter. Walsh spoke at length about the controversy during his podcast on Monday, restating that internet pornography should be illegal. During the debate, in response to criticisms Walsh tweeted: 

During the Twitter debate, commentator David French, of The Dispatch, also tweeted: 

I am not immune to porn’s addictive power and agree with these popular conservative thought-leaders that porn is harmful, detrimental, and degrading to all parties involved. Porn has the ability to ruin potential relationships, harm current relationships, and send men and women alike into dark emotional places. Nothing has been worse for relationships between men and women. That being said, I do not find myself agreeing with these gentlemen in the fight against legal pornography.

In regards to Walsh’s tweet, I believe many can agree you cannot legislate morality. Yes, of course most of our laws stem from a moral code and reflect our morality, as Walsh argued. Andrew Breitbart famously noted, politics is downstream of culture. But the phrase implies that “moral” legislation produces a moral people. That is a notion that radical ideologues and social reformers have commonly conjured throughout the ages: sublime fantasies of a utopian, socialist state fostering a moral people. We understand that this notion is foolhardy.

Meanwhile, David French quotes Republican Supreme Court Justice Robert Bork, who made it clear that “...academic, philosophical, and artistic speech should all be protected as well, because they inspired and informed political speech.” The essay French cites goes on to say that Bork, however, would not have “protected commercial speech.”

In responding, I would first demerit the authors of the essay (or Hon. Bork himself) in differentiating “commercial speech” from everyday speech, regardless of whether “commercial speech” is a legally defined term. There is no differentiation in “arms” from “cannon,” or “handgun,” or “AR-15” within the language of the Second Amendment. Consequently, speech is speech no matter if one is marketing, advertising a false claim, or making a profit from it, or not. These commentators should know that better than most.

If an artist (referencing “artistic speech,” above) desired to advertise and sell his artwork in the public marketplace, it would be his prerogative. Likewise, any filmmaker could do the same. Subsequently, if a producer of pornography (arguably an art form, thanks to postmodernism) desires to distribute his product for a profit, it is his right. Furthermore, in my understanding, it would be inaccurate to classify pornography as commercial speech in the first place.

Second, I would separate pornography from speech and call it “press,” one of the six concepts the First Amendment protects. Film and photography is not necessarily speech, but it is a form of protected expression. In Levell v. City of Griffin, it was decided that “press” is described as "every sort of publication which affords a vehicle of information and opinion.” Justice Antonin Scalia, in Brown v. Entertainment Merchants Association, confirmed that freedom of the press does necessarily extend to videogames, and movies preceding that.

Scalia said of the decision, “Grimm’s Fairy Tales, for example, are grim indeed.” Myself, quoting the New York Times’ article: he added, “depictions of violence... have never been subject to government regulation. High school reading lists and Saturday morning cartoons, too, he said, are riddled with violence.” Far be porn from Saturday morning cartoons, but the central notion remains: harmful, disturbing, or depraved (or any other condemning adjective) depictions are not subject to regulation.

According to Porat v. Lincoln Towers Community Association, to demonstrate a freedom-of-speech case, a “plaintiff must show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed.” In this case, a pornography producer might be able to demonstrate that he has a message—or narrative, if you will—to be communicated (no matter how vile and depraved). Also, he most certainly has an audience, as we know. (Note: I can make no judgment on whether these particular cases were decided rightly or whether they are the very most relevant of all historical cases to my point; I simply use them as examples of relevant precedents.)

Walsh stated in his article, “I can think of no other form of speech that only becomes speech when a camera is there to record it.” However, according to Porat, because the plaintiff (Ram Z. Porat) had taken photographs for personal (that is, non-distributive or commercial) use, “he effectively disclaim[ed] any communicative property of his photography as well as any intended audience… and alleg[ed] that the photographs were only intended for ‘aesthetic and recreational’ purposes.” In this case, Porat’s camera was involved in photography for personal use and was determined by the courts to not be protected, and therefore deemed “not speech.” Only when a camera is used in photography or filmmaking that is intended for a distributive purpose does it become protected speech. So, in this case, Walsh needs to examine the contents of both Porat and Larsen v. Fort Wayne Police Dept. before reaching this verdict. (The discussion of these cases is outlined here.)

Many pushed back against Walsh and others by arguing that porn use could be traced to a lack of parenting, or poor quality thereof. I will concede in defense of Walsh and Sohrab Ahmari that porn use isn’t merely a matter of poor parenting. However, it is true that parenting does play a role in defining, for a developing adult, what is a worthwhile or a harmful pursuit. As with addictive drugs, a parent can raise up a child in the way he is supposed to go (Proverbs 22:6), keeping him from ever first indulging in drug use, but the drug itself can have power over the user that upbringing has no power to overcome. 

The same idea extends to porn regardless of whether it is foisted onto us by our environment. Temptation, the Bible reminds us, is a reality that will always be around us. As conservatives and libertarians, however, it is our duty to remember that this does not mean that temptation could or should be regulated by the state. It can only be effectively policed by local institutions; family, community, and church.

Practicing the proper, conservative opinion on small government doesn’t cast you into the pro-porn camp. We can be conservative in culture by condemning porn without being authoritarian in legislation by banning it.* Conservatives and liberals alike can have a difficult time resisting the temptation of calling upon state intervention when facing a challenge we don’t like. As for me, I’d like to err on the side of freedom.

The problem lies in that there is a market for pornography, which fuels the prolific abuse and human trafficking of the porn industry. It is my estimation that the un-christianizing of our culture and the breakdown of the family unit have led young men and women in droves into the vice of porn. While I reside on the liberal side of the argument, I am in no way blind to the scourge that porn has become against our society. Walsh recommends an article describing how we might protect children from the scourge and you should check it out, here. (Note: While some of the article opposes my argument against regulation, I’d rather provide a more complete picture and the necessary tools for fighting in the culture war against porn and its industry.)Atrocities of the porn industry aside, our consumption of porn has devastated our young men and hurt women in the process. The important notions of love, respect, marriage, and intimacy have all been undermined by pornography. The epidemic is truly a tragedy of our time. I would implore all those struggling to seek help and accountability, for we all fall victim to our own weakness.

*Note: I would like to state my desire, however, in agreement with Walsh, to absolutely restrict access to porn by minors. To his credit, I believe porn’s accessibility to minors is the chief harm done, and rightly Walsh’s primary concern.

This article is part of a two-piece debate on conservatism and pornography. To read the opposing position by Joshua Abaya, click here!