47 Pages Posted: 17 Feb 2010 Last revised: 21 Sep 2011
Date Written: 2010
Pornography is often compared to pollution. But little effort has been made to consider what it means to describe pornography as a pollution problem, even as many legal scholars have concluded that the law has failed to control internet pornography. Opponents of pornography maintain passionate convictions about how sexually-explicit materials harm both those who are exposed to them and the broader cultural environment. Viewers of pornography may generally hold less fervent beliefs, but champions of free speech and of a free internet object to anti-pornography regulations with strong convictions of their own. The challenge is how to address the widespread concern about pornography while recognizing the limits of government regulation.
This article responds to the law’s failures by framing pornography as a pollution problem. It begins by explaining how pornography is like pollution, and how it is not. It then considers the obstacles to relying on regulation to combat pornography, and conversely, the difficulty with simply instructing internet users to tolerate pornography. The goal of the article is to show how viewing pornography as a problem of pollution may assist in devising new ways of responding to the widespread concerns about internet pornography. Generally, environmental law seeks to prevent some pollution from occurring at all, controls other pollution so that does not enter the environment, facilitates the separation of pollution that does reach the environment from those it could harm, and tolerates the presence of some pollution. The experience of environmental law suggests that the victims of pollution should not be burdened with avoiding it, and that filtering and zoning strategies can play in a role in helping people avoid exposure to the effects that pornography has on the internet environment.
Keywords: pornography, pollution, first amendment, toleration, regulation, climate change, internet, China, Green Dam, free speech, harm, obscenity, social norms, filtering, zoning, voluntary, Coase
Suggested Citation: Suggested Citation
Nagle, John Copeland, Pornography as Pollution (2010). Maryland Law Review, Vol. 70, p. 939, 2010-2011; Notre Dame Legal Studies Paper No. 10-01. Available at SSRN: https://ssrn.com/abstract=1553748