If elected, the GOP presidential candidate writes in a position paper widely circulated this week, he would order his attorney general to “vigorously enforce” existing laws that “prohibit distribution of hardcore (obscene) pornography on the Internet, on cable/satellite TV, on hotel/motel TV, in retail shops and through the mail or by common carrier.”
"The Obama administration has turned a blind eye to those who wish to preserve our culture from the scourge of pornography and has refused to enforce obscenity laws," he writes. "While the Obama Department of Justice seems to favor pornographers over children and families, that will change under a Santorum administration.”
Former candidate Michele Bachmann signed a pledge from a Christian group last year that called for banning all pornography. Front runner Mitt Romney declined to sign that pledge, which also criticized homosexuality. Santorum is the only one of the four remaining GOP candidates to address pornography in his campaign literature.
To be sure, plenty of Americans agree with Santorum that pornography erodes the country's moral character, and his contention that “pornography is toxic to marriages and relationships” is shared by many.
Moreover, despite pornography's ubiquity, there's no reason US attorneys can't step up prosecutions of people who flout anti-obscenity laws, especially against domestic purveyors. As recently as 2006 a federal jury found an Arizona company guilty of breaking obscenity laws for distributing hardcore pornography across state lines. The FBI announced 38 child pornography-related guilty verdicts or pleas this month alone.
“In most parts of the country, a lot of pornography on the Internet would plausibly be seen as obscene,” UCLA constitutional law professor Eugene Volokh told the Daily Caller, which publicized the overlooked Santorum position paper this week. “You can’t prosecute them all … but you can find certain types of pornography that are sufficiently unpopular” for easy convictions, he told the conservative news site.
But in a country that treasures its First Amendment right to free speech, and where attitudes regarding morality differ dramatically from state to state, a national standard for what constitutes obscenity has never been fully established, meaning that stepped-up obscenity prosecutions would most likely be patchwork.
Even in the most definitive obscenity ruling – the 1973 Miller v. California ruling – the US Supreme Court referred to the application of “contemporary community standards” and whether the work in question “described, in a patently offensive way ... sexual conduct specifically defined by applicable state law.”
In a dissent to the Miller ruling, Justice William Douglas wrote, “To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to 'offensive' as well as to 'staid' people.”
And while Santorum's criticism of the Obama administration for failing to bring more obscenity cases to court may or may not be fair, the administration's tack, legal scholars say, follows a general pattern dating back to at least 2000, a point where, because of liberalized attitudes wrought by the Internet, it became clear to many prosecutors that an all-out war on pornography that depicts consensual sex would be difficult to win.
“Federal courts,” George Washington University law professor Jonathan Turley also told the Daily Caller, “are reluctant to define movies or pictures as obscene based on such different opinions in society. For that reason, Santorum’s view of the standard falls well outside of the accepted view of the case law.”
On Friday, Santorum defended the position paper, telling reporters in Arlington, Va., that, "I said that as a president I would enforce the law which is not being done now.”
But GOP strategists suggest that Santorum's vow of a war on pornography is perhaps more a nod to his base rather than a broad campaign call to arms, especially since it's not a regular stump topic.
“I think he's saying this is going to be an important issue, and it's an important issue for a lot of social conservatives,” GOP strategist Ana Navarra said on CNN Friday.
Santorum's ability to rally social conservatives is widely seen as his best shot at challenging Mitt Romney for the Republican presidential nomination.