The new fight against pornography
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This story begins with a warning. It describes a court case involving stomach-churning details about what may be America’s darkest and most depraved industry. The reader will encounter scripts of sexual behavior that millions of teens on smartphones now view as routine, but which many readers will find shocking and very unsettling. The reader who chooses to read on may well find that the benefits justify the costs. However ugly the wound, the best disinfectant in such a case is usually sunlight.
The story begins in 2014 when, at the age of 13, Serena Fleites’ life was nearly destroyed by explicit videos made at the urging of her then-boyfriend. The boy, just a year older, shared them with friends. Someone posted them to Pornhub, the world’s largest porn website.
But that incident won’t define Fleites. Instead, she may well become the plaintiff who took down Pornhub. Earlier this year a federal judge in California ruled that credit card company Visa cannot wriggle out of Fleites’ suit against Pornhub’s parent company, MindGeek. Fleites’ attorneys argue that Visa knowingly helped MindGeek monetize child porn. MindGeek, a privately held Canadian company, is one of the largest pornography companies in the world, with annual revenues of $460 million. Its sites averaged about 4.5 billion visits a month in 2020 — roughly double the traffic Google and Facebook receive every month combined.
The new critics of porn are fierce and focused, contesting not just in law and regulation, but also the realm of public mores.
For the first time since the dawn of the internet, the porn industry is on defense. Last year Germany imposed an age verification law, and this spring that nation shut down a major porn platform. After a false start, the United Kingdom is also poised to soon launch its own age verification law. Here, the U.S. lags. American kids need only click a box asserting that they are 18 to gain access to everything imaginable, and much that isn’t.
The new critics of porn are fierce and focused. They’re contesting not just in law and regulation, but also the realm of public mores. This comes at a time of growing debate on the left about the dangers of porn, casual hook-up culture and ways in which feminism’s embrace of the sexual revolution has harmed women.
The porn critics’ most potent weapon may in the end prove to be the word “consent.” Beginning in the 1950s and rising through the 1970s, the phrase “consenting adult” became central to public discourse. The entire sexual revolution hinges on it, especially support for today’s broad reach of pornography. But what if both halves of that phrase — “consent” and “adult” — begin to fracture? We may be about to find out.
Fleites consented to nothing. As a minor, barely a teen, she couldn’t. Yet when that video appeared in 2014, her life collapsed. She had been an A student, journalist and anti-porn advocate Nicholas Kristof reported, but school became mortifying; she dropped out. She couldn’t tell her mom; she moved out. Someone gave her heroin; she got addicted. She tried pills and awoke in the hospital. She tried to hang herself, but her sister found her in time. Addicted and desperate, she was pressured into making more videos. These, too, went to Pornhub. The spiral continued.
Fleites’ counterpunch began in December 2020 when Kristof told her story in a scathing expose in The New York Times. Kristof wrote that Pornhub “monetizes child rapes, revenge pornography, spy cam videos of women showering, racist and misogynist content, and footage of women being asphyxiated in plastic bags. A search for ‘girls under18’ (no space) or ‘14yo’ leads in each case to more than 100,000 videos. Most aren’t of children being assaulted, but too many are.”
Fleites filed her lawsuit in the summer of 2021.
Alongside Fleites’ lawsuit, her attorneys have filed dozens of cases for other Pornhub victims. And after the Visa ruling, they hinted they may also soon target Mastercard and Discover. Meanwhile, Visa belatedly announced that it was finally suspending payments through MindGeek’s advertising arm.
“Visa knew that MindGeek’s websites were teeming with monetized child porn,” Judge Cormac Carney wrote in his decision, adding that Visa “is not alleged to have simply created an incentive to commit a crime, it is alleged to have knowingly provided the tool used to complete a crime.”
Minors vs. adults
There were other unpunished crimes in the Fleites case. The boyfriend himself was also a victim. It is against federal law to knowingly share pornography with a minor younger than 16. But on the internet this is a legal fiction. The only barrier between the young and the most extreme porn in the U.S. is the question, “Are you 18?”
No surprise then that schools are saturated with porn. In “American Girls: Social Media and the Secret Lives of Teenagers,” author Nancy Jo Sales interviewed over 200 girls between 13 and 19 years old. They describe porn as a constant, on the boys’ phones at all times and in all places — even in classrooms.
“‘This girl Jennifer was giving a presentation and these guys put their phones like that’ — she held her phone up to show the screen. ‘They were like, Oh, Jennifer, I have a question, and they raised their phones and it was a porn video. She couldn’t even concentrate.’”
Sales continues: “‘It’s just become so common,’ Billie groaned, referring to boys looking at porn in school. ‘And, like, what are you supposed to say? It’s bad enough when they compare us to porn stars and look at their pornstar accounts on Instagram at lunch. But when they’re, like, looking at a girl they know — that we may know — a girl our age’ — now she was referring to boys looking at nudes — ‘how can we, like, object? Either we’re slut-shaming or we’re jealous or a prude.’”
Sales’ interviews bring the Fleites tragedy into focus. The porn norms of Fleites’ young world — flaunted by boys and affirmed by adult silence — were clear. Who was Fleites to object? It was the air they all breathed. Few kids involved would even know they were committing crimes for which a 16-year-old could be tried as an adult.
And yet, it’s not the libido of the boys but the silence from the adults that puzzles the critics. Does anyone really think that 14-year-olds are not routinely clicking the “I’m 18” box? (They are.) Or that hypervigilant and preternaturally tech savvy parents are somehow protecting their children? (They aren’t.)
Europe vs. America
Some governments have had enough. Europeans are moving on age verification rules. France’s recent effort got struck down by its courts, but it was tangled in broader speech regulation. Germany is struggling to implement its rules, but is taking it seriously. The U.K., as noted, is also poised to move soon, but is also wrapping it in broader online safety measures. Meanwhile, companies like Meta and Google are moving ahead with their own technologies for nonintrusive age verification to protect underage users.
Meanwhile the U.S. still dithers. The obvious explanation is that the First Amendment protects free speech with a very strong libertarian margin of error that is foreign to European values.
Congress has tried. In the 1990s, it passed age verification laws to rein in child porn exposure. But the courts demurred. The last such effort was struck down by the Supreme Court in 2009 as violating the First Amendment.
But the court did, notably, indicate that technology developments could shift the analysis, if the tools became less blunt with time. And a decade on, the tech has improved. But more than anything the urgency has heightened. And so Europeans are wading into the waters of age verification.
Germany has endorsed biometric tools to meet its new rules. In one approach, video of the consumer would be analyzed with AI, with 23 a target minimum age, a margin of error because even the sharpest technology cannot distinguish a near adult from a barely adult.
And neither can anyone else, really. As a country we can’t quite decide when adulthood begins. On voting, the shift from 21 to 18 in the United States grew out of the Vietnam War. Old enough to be drafted, old enough to vote.
Some states followed the vote with alcohol. But it turned out that drunk 18-year-olds are a road menace. In 1984, the federal government required states to adopt 21 as the legal drinking age as a condition of federal highway funding. Tobacco doesn’t cause road fatalities, but it is highly addictive and deadly. In 2019, the federal minimum age to purchase tobacco products jumped to 21.
When these videos go out into the world you can’t get them back. A truly ethical porn product does not exist.
Some industries that deal with deadly younger drivers make an even harder bargain. Want to rent or insure a car? If you are under 25, you’ll pay a steep premium. Statistically, you’re dangerous. It’s actuarial tables.
It’s also brain science. The prefrontal cortex matures at almost exactly 25. Here’s a typical analysis from researchers at Johns Hopkins University: “The frontal lobes, home to key components of the neural circuitry underlying ‘executive functions’ such as planning, working memory, and impulse control, are among the last areas of the brain to mature; they may not be fully developed until halfway through the third decade of life.”
Individuals vary, and women mature a bit sooner than men. But no neuroscientist would argue that an 18-year-old has an adult brain. So how does a girl who is barely 18 give adult consent for the permanent public display of her most intimate youthful mistakes?
There is general agreement that some things cannot be consented to. And yet porn scripts that evoke rape — the quintessential form of nonconsensual violence next to murder — are pervasive. These portrayals are often presented as play or “rough sex.” There are, to borrow a phrase, shades of gray in “faux” portrayals of sexual violence. But as the gradient becomes normalized, deeper shades come out of the alleys onto Main Street.
On its website, We Can’t Consent To This tells stories of victims, both survivors and those who did not survive. Here’s a typical story of a woman who escaped such a relationship: “Looking back he was clearly trying to ‘groom’ me into accepting it, using emotional blackmail, gaslighting, making me feel guilty. … I did not want to face up to the fact that he had learned this in porn and then became dependent on it. …”
Normalizing such rape scripts under the guise of “rough sex” was bound to cause trouble. A 2019 Savanta ComRes poll found that 38 percent of U.K. women under the age of 40 had experienced unwanted strangulation or other sexual violence. The Centre for Women’s Justice told the BBC that there is “growing pressure on young women to consent to violent, dangerous and demeaning acts. This is likely to be due to the widespread availability, normalization and use of extreme pornography.”
Medical experts were horrified. “I am extremely concerned by the cultural normalization of strangulation,” British neuropsychologist Dr. Helen Bichard told The Guardian. That’s a sentence earlier generations of English speakers would never have expected to see in print outside the pages of a darkly prurient dystopian novel. “We all protested when George Floyd was killed by the same method of carotid restraint,” she said. “Why are we passively allowing young women to risk his fate? The law must send a strong signal that this is simply unacceptable.”
We Can’t Consent To This set out to do just that, battling a disturbing trend in criminal trials. Women would be killed, and the killer would try to use “rough sex gone wrong” as a defense. The group’s website tells the stories of 60 women in the U.K. who were killed. The activists argue that crimes that in previous generations would be attributed to anger or alcohol were now often blamed on consensual sexual violence.
With the group driving public awareness, in 2021 the U.K. codified by statute earlier court decisions that “a person cannot consent to the infliction of serious harm or, by extension, to their own death, for the purposes of obtaining sexual gratification.”
Pornhub had made token efforts to moderate its content to exclude child porn and “true” violence. But Kristof reported that the moderation team was understaffed and perversely incentivized to approve content quickly and loosely.
Moreover, as one moderator told him, “The job in itself is soul-destroying.” Just as some things cannot be consented to, some are best forgotten. Any reassurance the casual user draws from even the most exacting moderation would have to reckon with unwelcome memories imposed on those who are paid to flush out the abattoir.
‘The right to be forgotten’
In his landmark 2011 book “Delete: The Virtue of Forgetting in the Digital Age,” Viktor Mayer-Schönberger argues that forgetting is critical to social and individual mental health: “Our society accepts that human beings evolve over time, that we have the capacity to learn from past experiences and adjust our behavior.” He points to divorce, bankruptcy and even expungement of criminal records as examples of formal forgettings.
Mayer-Schönberger, a professor of internet governance and regulation at the Oxford Internet Institute at the University of Oxford, has been described as the godfather of the E.U.’s “right to be forgotten,” which in 2014 legally entrenched a rule that E.U. citizens can demand the erasure of personal data collected by tech companies.
The right to keep that data can be revoked at any time, Mayer-Schönberger said, even if a consent form was signed. But this does not apply to consent forms for copyright purposes. Which means that subjects of porn films have no recourse if they later regret their choice.
Without a radical overhaul of U.S. law and culture, there will never be a “Right to be Forgotten” in the U.S. The iconic First Amendment lawyer Floyd Abrams makes that clear in his 2017 book, “The Soul of the First Amendment.”
Abrams outlines case after case in which true facts found in articles in Europe have been deemed irrelevant and the contents ordered stripped from Google: “It is not a small thing for a government, let alone a continent-wide governmental entity, to criminalize the dissemination of truthful information on the medium that most people turn to for just such information. But that is now the law in Europe.” It simply will not happen here, he says.
But even in the U.S. there are possible exceptions, and again they center on consent. When we spoke, Mayer-Schönberger was surprised and intrigued to learn about a criminal case involving pornographers in San Diego who used deception rather than consent. The finding that consent had been compromised, he said, “opens up a very interesting angle. It might allow more room to argue that consent was compromised by pressure, or even that a younger adult had not given true consent.”
Is it wrong to derive pleasure from a past event that may very likely now traumatize someone involved? Is consent a one off matter — or does true consent require an active present, not just a static past?
The debate at Oxford
Critiques and defenses of porn have long focused on the impact it may or may not have on the lives of those who use it. Is it addictive? Does it contribute to male impotence? Does it damage romantic relationships and families? All valid lines of inquiry.
But porn’s new critics argue the deeper porn problem cannot be found in the lives of the end users. Sometimes, it’s not about you. And sometimes it’s not about mere legality.
“Every single person has absolute autonomy over whether or not they directly contribute to this industry.”
This past winter, a young British feminist took that argument to the floor of the Oxford Union, the legendary debating society. Louise Perry is a British activist, author of “The Case Against the Sexual Revolution.” (Her book, a bestseller in the U.K., hit U.S. bookstores in August).
Oxford Union asks advocates to speak on either side of a question. The audience then determines the winner. At issue in February was whether to “welcome the new era of porn.” Perry argued that consent is a troubled concept: “As long as those women are old enough — just — and as long as they are moderately sane enough, and as long as they say yes at the crucial moments, then they reach the legal threshold for consent and the industry can do with them what it likes.”
Perry concluded by moving beyond regulatory questions. Watching porn is a personal choice, she said: “Every single person has absolute autonomy over whether or not they directly contribute to this industry. It is so much easier to give up porn than it is to give up factory farm meat or clothes made with sweatshop labor because we all have to feed and clothe ourselves but not a single person in this room ever needs to watch porn ever again.”
Perry’s hunch was that — while there are certainly many Jeffrey Epsteins and Bill Cosbys, for whom compromised or withdrawn consent is irrelevant — there are also millions for whom the very thought of sex without consent would be repellant.
Perry reminded the audience that in 2001, Jenna Jameson, then known as the Queen of Porn, had argued on that same floor in defense of her then-profession. Jameson won that debate decisively in the audience vote.
But in the years that followed, Perry noted, Jameson became an outspoken critic of porn. And 21 years later — a long time, but not long enough for a prefrontal cortex to mature — a new Oxford Union audience, persuaded by a dynamic young feminist, voted 171-139 to reject the motion that the “new era of porn should be welcomed.”
It’s been a big year for Perry. She became a first-time mother, launched her book in the U.K., and at the end of August began her U.S. book campaign. Gearing up for that, Perry went on Bari Weiss’ influential podcast, “Honestly.” There, she debated another writer, who defended porn as a mixed but positive good.
At one point, Weiss turned to Perry and asked if she forbid her husband from watching porn. “Of course,” Perry replied. “Long before we were married. It’s a fundamental values thing, right?”
She immediately pivoted back to consent, clearly at the forefront of her values: “You might think they consented at the time. You cannot know they are still consenting. The nature of these videos going out into the world is that you can’t get them back. … I do not think that a truly ethical porn product exists.”
This story appears in the January/February issue of Deseret Magazine. Learn more about how to subscribe.