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Home – Founding Fathers & American History – Restoring Obscenity Regulation: Lessons From America’s Founding Era

Restoring Obscenity Regulation: Lessons From America’s Founding Era

Americans born after the mid-1990s have lived their entire lives in a world awash with hardcore pornography. Never has so much pornography been so available to so many at so little cost. Our laws leave much pornography effectively unregulated. Our technology, especially smartphones, brings portable, private porn shops to everyone’s phone.

Like today, there were no prosecutions for obscene libel in colonial America or in our early republic. Some take this as evidence that the American Founders were, like today’s progressives, indulgent toward obscenity.

As I show in a new report, in reality, the lack of obscenity laws in early America speaks to the strictness of morals and the costs of publishing and distribution. There were no laws against obscenity until there was obscenity, and there was no obscenity until there was cheap printing. As new technologies reduced printing costs, the national government almost immediately banned the importation of obscene materials, and state governments regulated obscene publications.

The founding generation accepted speech restrictions that furthered public morality. The Founders agreed with English jurist and legal theorist William Blackstone that the state had broad powers to regulate obscenity. In his “Commentaries,” Blackstone recognized that common law courts could sanction as libel “any writings, pictures, or the like, of an immoral or illegal tendency.” Justice James Kent similarly wrote in the American context that, to protect “the tender mercies of the young” from “gross violation[s]........

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