- INTRODUCTION
For many decades, the primary cultural, academic and medical discourses on sexuality have been dominated by concerns about risk, danger, sin and shame. Sexuality has long been a site for social control, and exercise of power and authority- often manifesting in the ways of censorship, criminalisation and ostracism. We learn from Foucault, that the age of repression began in the seventeenth century with the subjugation of language, free circulation in speech, expunging “sex” and anything adjacent to “sex” from what was said, and extinguishing the words that rendered it too visibly present. The repression of sex and by extension anything sexual is still relevant to preserve positions of power and maintain the dominance of ideologies beneficial to the same. This aversion to any discourse even remotely adjacent to sex, including sexual expression, has inhibited social evolution, let alone legislative practices.
Sexual expression generally refers to the ways individuals express their sexuality, encompassing a wide range of behaviours, emotions and interactions. Online sexual expression, then, refers to sexual expression through the means of the internet. Sexual expression has always been tied to technology- be it the pen, the camera or the cell phone. Consent is the foundation of our relationships with search engines, social networks, commercial websites and any of the dozens of other digitally mediated businesses we interact with regularly. The nature of consent is, however, complicated by the distinction between public and private (information and domain), non-consensual dissemination of content, the role of hosting platforms and third parties, and storage and management of information among others. In any case, the consent of and between engaged parties is an essential consideration for the development of legislation related to online sexual expression.
Aside from the criminal aspect of online sexual expression, such as child pornography, cyber flashing, bullying, leaking nudes, etc., very little attention has been paid to the development of a comprehensive regulatory framework, let alone a consent-based framework. Ideally, such a framework would include the right of the content publisher to publish content, the ability of the consumer to consume such content or receive adjacent services (if available) and the corresponding duty to not disseminate exclusively delivered content, and the ability of consumers to “opt-out” of algorithms that may present such content to them. In each of these relationships, consent is in play- and therefore, can be utilised as an element for legitimisation of digital sexual expression and subsequent regulation.
Several standards for “legal” or “valid” consent in online spaces have emerged and found a place in law. For instance, according to Richards and Hartzog, consent is most valid when choice is infrequent, when the potential harms resulting from that choice are vivid and easy to imagine and where we have the correct incentives to choose consciously and seriously. In the context of online sexual expression, O’Bryan posits that the contractual models used for the dissemination of sexual material online, such as pornography, are often violative of the right to sexual autonomy of the actor or creator- as they are required to surrender rights over their public image. They propose that “affirmative consent” must constitute the basis of the contract. Recommendations and policy papers have also elaborated on threat models and safety strategies for image-based intimacy online with an inclination towards platform liability.
In this paper, I will argue that sexual expression on the internet must be limited by affirmative consent. This framework will be used to study Australian, Canadian and American laws to understand how consent is contemporarily codified in regimes where online sexual expression has been decriminalised. Finally, this paper aims to create a human rights-based and consent-driven legislative reference by consolidating and scrutinising legal practices related to the decriminalisation of online sexual expression.
- Freedom of Expression and Consent in Online Sexual Legislation
On the internet, the legislative distinction between sexual expression and sexually explicit expression emerged in 1995 for regulation purposes. This began with the Communications Decency Act of 1996, which criminalised the use of an “interactive computer system” to transmit or display to a minor “any comment, request, suggestion, proposal, image or other communication that, in context depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs”. Given the lack of a definition, upon construing the same negatively and substantially broadly, an act related to the sexual characteristics of a person which is not offensive or harmful on the internet generally constitutes sexual expression.
- Extending the Mandate of the ICCPR
One cannot help but associate sexual expression with freedom of expression; only for it to amount to a mistake of fact. Sexual expression (offline and online) has generally been positioned outside the ambit of protected expression, and limited by the standard of “obscenity” contrary to the ICCPR’s permissible limitations of expression for the protection of the rights and reputation of others, national security, public order, public health, or public morals, if provided by law and necessary. The HRC has repeatedly emphasised that “provided by law” is a pre-requisite for the imposition of limitation on any form of expression, including on the internet. Said “law” may be a norm but it must be formulated with (i) “sufficient precision to enable an individual to regulate his or her conduct accordingly”, (ii) “accessible to the public”, and (iii) the law “may not confer unfettered discretion for the restriction…on those charged with its execution”. The Office of the High Commissioner for Human Rights (OHCHR) in its mandate of 2018 following the approval of a draft of the Digital Security Act 2018 in Bangladesh clearly stated that the imposition of criminal offences for an expression is in itself concerning- exacerbated by vague provisions and unfettered discretion the law granted respective authorities. The continuous use of “obscenity” as a regulatory standard for sexual expression has permitted great latitude in discretion to executive authorities and courts alike. American Justice Stewart was most apt in reflecting the extent of said distinction in stating that an intelligent definition of obscenity might be impossible but “I know it when I see it”- that “he” knows it when he sees it.
The requirement of a precise legal basis for a restriction on an otherwise fundamental liberty protects citizens’ right to justice. This also equips citizens with the knowledge required to conduct themselves in a way to not violate the law. However, standards that require that someone not produce obscene material, whereby a material is deemed obscene if it violates “community standards” is wholly imprecise and places an impossible burden on the citizens to discern what constitutes community standards and thereby which behaviours would violate them. Irrespective of the blatant violations of fundamental human rights, little attention has been paid to sexual expression even by the HRC, with its only substantial work being on sexual of gender and sexual minorities. Nevertheless, in furthering the extensive human rights jurisprudence on the fundamentality of freedom of expression and the duty of the state to protect it, I propose that sexual expression should be recognised categorically as a form of expression within the scope of freedom of expression and be restricted only on corresponding permissible grounds under Article 19(3) of the ICCPR. This would allow sexual expression, including online sexual expression to be treated within the human rights framework- imposing a greater responsibility on the state for protection and exponentially more scrutiny on its regulation.
- Affirming and Factoring Consent
Not mentioning the complicated nature of online sexual expression, particularly penalised acts of disseminating child pornography and voyeuristic content would be wholly disparaging to the case for a consent-based framework to regulate sexual expression. “Violent” or “non-consensual” sexual expression must undisputedly be outlawed. However, straightjacket criminalisation of all sexual expression, virtually or otherwise, not only arbitrarily infringes freedom of expression but specifically affects sexual and gender minorities and sex workers on the internet. While a boundary must be drawn to prevent violence and harm, the power to draw the line cannot be arbitrary and unregulated. I propose that the boundary for sexual expression must be drawn on the basis of the consent of related parties as subjects, producers, and disseminators of sexual content.
The Istanbul Convention notably recognised consent as a central element in the definition of rape. With the emergence of the Spanish “ley del solo si es si” or “only yes means yes” campaign, affirmative consent has been legislated as the core element of sexual assault. This new standard notably shifted the burden of proof on the perpetrator and outlawed the element of intimidation or violence in sexual assault. The application of this principle of consent is, however, limited to legal instances of sexual violence. Discourses on the role of consent in general sexual exchanges are limited, let alone related to online sexual expression that is not overtly violent.
Mia Khalifa, for instance, has repeatedly and very publicly opposed the dissemination of films she starred in since having left the industry at age 26. Irrespective of the “withdrawal” of Mia’s consent to share her images and films, the industry has been benefitting from the rights they gained over the media when she gave consent at age 21. Khalifa’s sexual autonomy is blatantly disregarded when her ability to withdraw consent is not ascertained. Political Scientist O’Bryan argues comprehensively that affirmative consent must be ensured in such contractual exchanges.
Bryan expands on the definition of affirmative consent in California Senate Bill 967: “affirmative, conscious, and voluntary agreement to engage in sexual activity”, which must be “ongoing throughout a sexual activity and can be revoked at any time” and proposes that it be applied to contracts related to pornography. They identify two parts to affirmative consent- first, positive and open expression of consent and second, revocability of consent. As opposed to what they call “single-issue consent” (consent given once, often at the beginning of a transaction), affirmative consent is continuous, and not “a single temporal act but rather a state of agreement which can be exited at will”. Given the entanglement of the right to privacy and the sexual agency with online sexual expression, affirmative consent must be ascertained especially for the performer in the performer-consumer relationship among others. Ideally, said ability to “exit”, i.e. ability to withdraw consent, must go as far as to the application of the right to be forgotten. European legal corpus and corresponding jurisprudence have incorporated the withdrawal of consent (and the right to object) in data processing by the data subject. These frameworks must be adapted in the context of online sexual expression to permit full and continuous consent and legal protection to related performers.
While generally, the lack of consent or the inability to consent of the subject of the content, for instance in cases of voyeurism must be prohibited, the sharing of sexual content by consenting individuals must be protected by affirmative consent. The ability of the consumer to disseminate purchased content is often subject to platform regulation and the legal relationship between the performer and the consumer. However, in the interest of the privacy and agency of the performer of the sexual expression, in case of any conflict in the determination of the preponderance of the rights of the performer and the consumer, the former should take precedence.
Under the framework of the ICCPR, the right to privacy can be extended to include consent in the context of online sexual expression. The Human Rights Committee has persistently recognised consent as a central element of privacy. This due recognition of consent in privacy would allow states to regulate and prohibit non-consensual exchanges under the permissible restriction to freedom of expression for the respect of the “rights and reputations of others”. “Rights”, here, includes Covenant rights and rights more generally recognised in human rights law, including the right to privacy, while “reputation” includes attacks on privacy and honour. A conjunctive interpretation of Article 19 and the protected right to privacy under Article 17, by factoring in consent would permit comprehensive and precise regulation of online sexual expression. Affirmative consent, then, should primarily be expended for the protection of creators.
Cumulatively, a three-prong framework arises, whereby (i) the positive act of engaging in sexual expression on the internet must be regulated as a fundamental right to freedom of expression, (ii) restricted under the permissible exception for the respect of the rights and reputations of others per the ICCPR, if (iii) the right to privacy, within which generally consent and specifically affirmative consent are violated. Since this is a novel approach, the laws of Australia, Canada, and America related to online sexual expression to understand the treatment of sexually explicit expression online as expression and demonstrate the role consent already plays in existing regulations.
- Legislating Consent
The core issue in legislation is 0of sexually explicit content as it is the site of expression of the state’s idea of what constitutes appropriate sexual expression. Some fear and much discomfort is attached to sexually explicit content, and states have been quick to resort to fear mongering and porn bans to rectify said responses. However, most individuals use the internet to both create and seek sexually explicit content of their own will, understanding to the fullest extent possible the meaning and the consequences of their actions. I will be using the content moderation models used by OnlyFans and PornHub in particular to demonstrate how consent is being used to regulate content.
The notoriety of a platform such as OnlyFans is proof of the prominence of such mutual sexual exchanges online. The success of OnlyFans has been attributed to its creator-driven, subscription-based approach to sexually explicit content. It generally removes or does not “tolerate” non-consensual content (including content featuring persons who cannot consent, such as those under 18 and even content where a person pretends to be under 18), hateful conduct, abuse or harassment, content deemed illegal in the nations where they are produced and consumed, encouragement of alcoholism, drug abuse, and gambling, use of blood or violent or extreme content, prohibited bodily fluids, copyright violations, and reference to physical meeting of creators and fans. Content moderators are allowed some discretion over content exhibiting specific types of kinks (including consensual non-consensual sexual activities, excreta, urine, blood, etc). While an argument may be made here against the regulation of kinks that are not potentially violent, such as the use of excreta or urine, the regulation of content by OnlyFans is only being used to illustrate how the creator can be protected while allowing autonomy to the creator-subscriber relationship to determine the type of content being created and consumed. Further, content is taken down if published or purchased in a place where it is illegal- allowing national jurisdictions to exert some control over explicit sexual expression according to community standards.
Consent and the ability to consent form a core basis of the new policies adopted by PornHub as well, where permitted expression includes content created by “registered users” only, whose ages are verified using government-issued identification and biometric information. Third-party age verification service providers, cookies and automatic data processing technologies are used to verify the age of persons visiting the platform without registering. Personal information including uploaded content is subject to the right to be forgotten.
Requiring such platforms to register nationally also allows states greater control over regulation, inducing further compliance with precise domestic laws. Although such platforms already regulate sexually explicit expression, they rid themselves of any liability incurred from non-consensual sharing, re-uploading, tampering, or commercial use by non-creators. In addition to this, the decriminalising/legitimising state is responsible for regulating the privacy concerns of online services which facilitate sexual expression. Irrespective of the rather complicated nature of the internet and the countless problems in internet jurisdiction, states have made attempts to regulate sexual expression online.
- Australia
The Australian Constitution does not directly protect freedom of expression despite being a party to the ICCPR. The High Court has, however, upheld that the Constitution protects the freedom of political communication in several instances. The Human Rights Act protects freedom of expression in Section 16, while Section 28 allows reasonable limits set by Territory laws that can be justified in a free and democratic society. Such limit on freedom of expression is deemed reasonable by considering a) the nature of the right affected, b) the importance of the purpose of limitation, c) the nature and extent of limitation, d) the relationship between the limitation and its purpose, and e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve. The Federal Act delimits the scope of permitted exceptions to freedom of expression for Territory laws. For instance, in compliance with the ICCPR, the Charter of Human Rights and Responsibilities Act in effect in Victoria allows lawful restrictions reasonably necessary to respect the rights and reputation of other persons or for the protection of national security, public order, public health or morality. Other Territory laws do not clearly prescribe specific grounds to limit expression.
Other limitations exist in the Criminal Code which outlaws the use of a telecommunications carriage service in a way that is intentionally menacing, harassing or offensive, and using a carriage service to communicate content which is menacing, harassing or offensive. Sexual expression does not find its way into the realm of freedom of expression in the country, however, the state has taken a permissive stance with consent a demonstrably significant consideration in legislation and policy.
- Categorising Sexual Expression
Since the 1970s, the Australian government has moved away from “direct censorship towards classification of a broad range of media content”. Categorisation of media entails obligations to restrict access by marking content only lawfully available to adults, advice as to the suitability of content to people within particular age groups, or recommendations as to how the content should be consumed by children. In Crowe v. Graham, the High Court adopted the new test of “community standards”, referring to the “modesty of the average man” instead of the jurisprudential obscenity. This was a precursor to an “open, liberal, accountable regime, based around classification as the norm and banning of material as the exception”.
The Australian Law Reform Commission has confirmed, as opposed to the “more pejorative” term censorship suggesting public order and public good, that “classification is associated with the facilitation of informed choice in a community of diverse standards”. Primarily two acts make the paradigm shift from censorship possible- the Classification (Publications, Films and Computer Games) Act 1995 and the Broadcasting Services Act 1992. Under the Broadcasting Services Act, content on the internet is classified as “prohibited” or “potentially prohibited” content. A Classification Board determines if the content is classified as X 18+, R 15+, MA 15+, or RC for it to comprise “prohibited content”, whereas content which is likely to be classified as prohibited by the Board is “potentially prohibited content”.Under the Act, parents are allowed to monitor the online activities of their children, filter technologies, content labelling, and complaint handling procedures. Further, the Internet Industry Association (IIA) has developed the Internet and Mobile Content Code and the Content Services Code.
Even though sexual expression has not yet been treated as a fundamental freedom, restriction of expression is evidently an exception. Legislative efforts indicate that categorising content is aspiring to legitimise and permit the greatest possible freedom. The Commission has noted in its report that public awareness and familiarity with the classification scheme is high, and the Classification Board and Review mechanisms are both prompt and independent. However, several problems have emerged due to jurisdictional issues between the states and territories in the enforcement of the categories and corresponding penalty provisions. Pragmatically, distributors of content have also refused to submit their content to the designated and overburdened Board for classification.
Irrespective of challenges in co-regulatory and self-regulatory systems of classification, government authorities have agreed that the classification of informed media, “such as balancing the rights of adults to make informed media choices with the protection of children” must continue. Consequently, reforms have been directed at decreasing the burden of classification on government regulators such as the Board by limiting their duties to content moderation with the aid of industry codes. Even if sexual expression is not included within freedom of expression, classifications of expression and corresponding qualifications are not arbitrary and censorship is an exception.
- Sexual Consent Online
The Online Safety Act 2021 furthers the campaign of restriction as an exception by protecting users on the internet. The new legislation was introduced to “keep pace with advances in technology and the threats we face online from harmful behaviour and toxic content”. The Act prioritises consent and protection against harm in the form of cyber-bullying, non-consensual sharing of intimate images, and cyber-abuse.
“Image-Based Abuse Scheme” is a key feature of the Act, allowing an eSafety Commissioner to intervene and require the removal of intimate images of videos shared online without the consent of the person shown. Further, the Act puts in effect a complaints and objections system for non-consensual sharing of intimate images, which may result in civil liability for the person who shares such images, while the internet service and end-user of the social media service may receive a removal notice to remove said content. Similar schemes exist for the protection of children against cyber-bullying and cyber-abuse material targeted at Australian adults.
It not only addresses individual rights, but also establishes clear expectations for online service providers through the Basic Online Safety Expectations (BOSE) – setting standards for the engagement of the tech industry in online safety transparently, accountably, and by enacting proactive measures to protect users from harm. This includes expectations from online service providers to create clear content moderation and user reporting mechanisms to prevent and rectify harm and allow users control over their digital presence. Platforms incur liabilities upon failing these expectations- effectively shifting some responsibility for consent management to the tech industry.
The Act also mandates the creation of new industry codes for various sectors online, such as social media platforms, search engines, messaging services, and internet service providers. Codes are intended to require platforms to detect and remove illegal content. For instance, these codes can protect vulnerable groups such as children by ascertaining that online service providers implement effective age-verification and content-filtering measures. Online service providers are also required herein to provide awareness, educate users about their rights, inform parents and guardians about how to supervise their children’s online activities, etc.
The Australian government has also made significant strides to keep its citizens at pace with technology by allowing access to guides related to online safety on a public government website called “eSafetyCommissioner”. For instance, with regard to consent related to sexual expression, the website contains easily accessible information on the elements of consent generally (free, communicated, checked regularly, reversible, specific) and for sexual exchanges (nudes, sexting, nude video calls), setting boundaries, respecting boundaries, safety tips for sending nudes, and help available upon breach of consent.
Collectively, the Act evidences the solidification of consent and autonomy as founding principles of interactions on the internet. By designating a specific authority to take down harmful content and criminalising non-consensual actions, the Act allows for protected sexual expression online. “Expectations” from the industry, backed by industry code further bolster the government’s belief that online service providers and the tech industry at large are also responsible for protecting users and affirming consensual exchanges. Affirmative consent has not yet been codified, although the “reversibility” of consent has been discussed sparsely. The Australian approach to online sexual expression then, appears to be consent-based and protectionist at large.
- Canada
The Canadian Constitution, in the Canadian Charter of Rights and Freedoms, protects the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication in Section 2. The Canadian Bill of Rights also protects freedom of expression in Article 1(c) and (f). Said right is subject to a general limitation on all rights and freedoms guaranteed by the constitution, namely by “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Generally, freedom of expression is protected against arbitrary interference by using the three-part test of “prescribed by law”, “reasonable”, and “demonstrably justified” based on R v. Oakes. However, experts have noted that the Canadian Supreme Court has opted for a “large and liberal” approach to the protection of rights under the Charter, and Courts have often found “a prima facie” breach easily due to such a broad interpretation of Section 2(b).
In extending the scope of protection, the Courts have applied the principle of “content neutrality” to interpret Section 2(b) – meaning that “expression, no matter how offensive, unpopular or disturbing, cannot deprive it of section 2(b) protection”. Violent expressions and threats of violence, however, do not qualify for such protection. In the case of public expressions, protection also hinges on the location of the expression, elements including the historical or actual function of the place and whether expression within such location would undermine values underlying free expression. This overarching protection of expression mostly inches itself into regulatory approaches to sexual expression.
- Un-harming Sexual Expression
The Criminal Code criminalises the creation and dissemination of “obscene material”, which are materials that have “the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence”. Production, distribution and possession of child pornography is also a crime under Section 163.1 of the Code. Nevertheless, Canadian undertakings related to sexual expression have been fairly progressive, as the Courts have often interpreted sexual expression in light of freedom of expression. For instance, the Supreme Court has held the criminalisation of communicating or attempting to communicate with any person in a public place for soliciting prostitution was not lawful under the Canadian Charter. Even expanding on exceptional bases for restriction, the Courts have been very careful in balancing harm against the right to expression, as evidenced by relevant jurisprudence on prospectively obscene material.
In deciding if a shop was selling “hardcore” pornographic material under the Criminal Code in R v. Butler, the Supreme Court primarily used the “community standard of tolerance” test to determine if the content featured “undue” sexual exploitation. The Court decided on two other tests that could be applied to determine if the expression contains undue exploitation of sex- “the degradation or dehumanisation” test and the “internal necessities” or “artistic defence” test. Herein, community standard comprises not what Canadians would tolerate being exposed to themselves but what they would not tolerate others being exposed to. The court furthered that the stronger the inference of a risk of harm, the lesser the likelihood of tolerance. With due regard to “hardcore” porn, it held that “the portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex”. It was also held that such content can be both degrading and dehumanising. The Court also acknowledged that it is indeed difficult to draw a direct nexus between obscenity and harm to society. However, it held that the criminalisation of obscene materials exists to deter “dissemination of materials which potentially victimise women and to restrict the negative value of such materials on changes in attitudes, behaviour and objective”. Thus, it was held that the criminal sanction imposed for selling obscene material was a public moral imperative, and in compliance with the Canadian Charter, particularly Sections 1 and 2.
Three categories of pornography have emerged in Butler– (1) explicit sex with violence; (2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanising; and (3) explicit sex without violence that is neither degrading nor dehumanising. While the first two categories of materials can justifiably be restricted under the Constitution and the Criminal Code, Courts still enjoy discretion in the application of the ascribed tests to discern what violates “public morals” and “community standards of tolerance”, and which expression is “degrading or dehumanising”.
Since R. v. Butler, it has been confirmed that the community standard of tolerance relates to harm and not taste. In a case concerning the import of materials related to the sexual expression of gay and lesbian communities, the Court held that the “community standard” was adopted in Butler due to concerns for factors such as minority expression. Further, it was elaborated that this standard “validates a broad range of sexually explicit expression as non-harmful”. In light of these cases, it is abundantly clear that Canada’s permissive approach to sexual expression is delimited only by harm.
- Consent and Protection Online
There is no tolerance for violent and degrading sexual material in Canada, and policy experts use consent as a key factor in identifying violent pornography. In so doing, sensibilities about the consumption of Hentai, erotica, and the existence of kink communities are also being nurtured. The Canadian Parliament introduced Bill C-63, the Online Harms Act in 2024 to amend the Criminal Code. The primary purpose of the Act is to implement protectionist measures and criminal sanctions against sexual victimisation of a child, revictimisation of a survivor and intimate content communicated without consent online.
The Act defines “harmful content” as “intimate content communicated without consent”, content that sexually victimises a child or victimises a survivor, content that is used to bully a child or induces a child harm to themselves, content that foments hatred, incites violence, violent extremism or terrorism. Even “intimate content communicated without consent” has been criminalised. A Digital Safety Commission is also established under the Act to promote online safety and reduce harmful content online. A novel Digital Safety Ombudsman is also constituted to solicit views of specific issues, conduct consultations with users and victims, direct users to helplines or law enforcement agencies, advise, publish public reports, and advocate to rectify severe or systemic user-specific issues.
Operators are also obliged to identify, make accessible, and notify users who communicated the content of the inaccessibility of content that is harmful under the Act. Further, they must file and publish Digital Safety Plans containing measures the service is taking, their effectiveness, indicators used to measure effectiveness and analyses of new risks or trends related to online safety. Users can flag content to indicate that it is harmful and non-consensual and the operator must, upon such flagging, assess the content to either dismiss the flag or make content inaccessible. Complaints can also be submitted to the Safety Commission for investigation. The new Act puts in place a mandatory reporting system for child pornography, thereby enhancing transparency in the process of regulation by services and the steps taken by government bodies to effectuate structural reforms.
Sexual expression is treated as would freedom of expression, as evinced by Canadian jurisprudence. Reasonable restrictions, even online, are based on the more conventional harm and the relatively new consent. However, it has used a framework of punity to protect citizens against harmful and non-consensual expressions online. In any case, the Canadian protectionist approach most appropriately embodies the proposed framework for the regulation of sexual expression.
- America
The First Amendment to the American Constitution protects the right to freedom of speech, while the extent of protection afforded to these rights is interpreted by the Supreme Court. Noted limitations have been for defamation, invasion of privacy, obscenity, child pornography, incitement, fighting words, and threats. This absence of federal legal standards to regulate freedom of expression grants government bodies unfettered discretion to determine what constitutes permissible expression. Consequently, public-morality-based standards such as “obscenity” are used to regulate sexual expression offline, while expression online is largely under attack.
- Standardising Sexual Expression
Justice Stevens elaborated on Voltaire that the remark “I disapprove of what you say, but I will defend to the death your right to say it” does not apply to the subject of sex. Jurisprudence on obscenity since Roth v. United States in 1957 had not been very successful in providing generally applicable tests to restrict sexual expression. The Supreme Court held that materials which “deprave and corrupt those whose minds are open to such immoral influences” were obscene and thus subject to bans. Justice Stewart delved further into arbitrariness in 1964 and posited that hardcore pornography is not protected, and the method by which to identify what constituted “hardcore pornography” could not be defined, quickly granting discretion- “but I know it when I see it”. This moral disgust was fueled further in Memoirs, where the court held that obscene material is that which is “patently offensive” and “utterly without redeeming social value”.
Then came the Miller test, which in examining whether pornographic materials had any redeeming values in line with Memoirs, developed a three-part test for sexual expression to be legitimately infringed- 1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, 2) whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law; and whether the work taken as a whole lacks serious literary, artistic, political, or scientific value. When acquitting Miller, the Court further clarified that no one can be subjected to prosecution for sexual expression unless the materials contain “patently offensive”, “hard core” sexual conduct specifically defined by regulating state law. Although a definitive and relatively liberal test emerged to discern obscenity, the determination of “community standards” and elements of violence is still contingent on state laws.
The Supreme Court has used the Miller test in establishing that child pornography is not protected under First Amendment rights in New York v. Ferber because it has “no redeeming social value”. Several Acts, such as the Child Pornography Prevention Act, Child Online Protection Act (COPA), and Communications Decency Act (CDA), despite their proclaimed objective to prevent child pornography, have attempted to impose overbroad restrictions on sexual expression online and offline, only to be struck down by the Court. Further, with the rise of the internet, the “community standards” test has gained prominence as it allows states to discern as they wish what comprises “obscene” material. For instance, sex toys are banned in Alabama and Texas under obscenity laws due to backing from coalitions of conservative Christians.
Given the absence of precise legislative grounds for restricting expression, regulation of sexual expression hangs in the balance of the predominant political ideologies of relevant states. Online sexual expression is particularly unregulated, as limited internet-based federal legislations such as CDA aim to prevent “indecent” material in cyberspace, while COPA aims to prevent minors from getting access to sexually explicit “but otherwise legal material”. While there is some implication of a consent-based limitation in the outlawing of child pornography, consent is far from a significant consideration in the regulation of sexual expression.
- (N)on-line Expression
Recent American legislative efforts towards online sexual expression exhibit a public-morality-based approach, as intentions to limit sexual expression run at an all-time high. This began in 2018 when the American nation also blatantly induced the shut-down of “Switter”, a social media platform used by close to half a million sex workers globally- an attempt at consensual exchanges and the prospect of community when it banned for fear of the SESTA/FOSTA Bills. The purpose of the Act, however decidedly noble in its pursuit for the control of sex trafficking of minors online, does not outweigh the broad discretion granted to executive bodies in deciding which platform or “interactive computer service” is to be banned.
After the 2019 verdict against PornHub and GirlsDoPorn, several American states have encouraged the penalisation of a range of actions of websites that post pornography. PornHub has since removed users’ ability to download content and limited the ability to upload to verified users only- to keep private users from creating duplicates of criminal matters and re-uploading them even after the content is taken down. It has also entered into partnerships with the National Center for Missing and Exploited Children and other international activist groups to aid the reporting and removal of illicit content. Although these efforts were a result of the work of advocates such as Mickelwait and Kristof, their crusade against trafficking and portrayal of the pornography industry has allegedly demonised sex work instead of sexual violence. Consequently, the conceited effort to “protect” vulnerable groups from harm has perfectly set up the launch of a modern anti-sex legislation campaign in America.
In 2024 alone, 523 anti-LGBTQ+ bills have been proposed by state legislatures. With particular regard to online sexual expression, the far-right “Project 205” proposed by Donald Trump in his campaign against “transgender ideology” states that porn must be banned, porn producers and distributors must be imprisoned, and tech companies allowing dissemination must be shut down. Ironically, however, the apex court recently failed to pronounce upon platform liability for algorithms and dissemination of content online.
This campaign against expression is not limited to sexual expression but has extended itself into general expression. Since 2020, promises of a TikTok ban have been abundant in the country on account of intervention by Chinese authorities. The campaign started in the Trump administration, in 2021 following Biden’s signing of the “No TikTok on Government Devices Act” in 2022. Currently, the “Protecting Americans from Foreign Adversary Controlled Applications Act” is to go into effect by January of 2025, causing a nationwide ban, unless ByteDance complies with terms of divestiture set by the President.
Currently, bipartisan consensus on the limitation of sexual expression online threatens the legacy of Miller and its somewhat permissive approach to sexual expression. Community standards reign supreme, as Congress remains silent on the matter of legislatively restricting freedom of expression, and therein freedom of expression. Consent, let alone consensual exchanges online is in a constant state of terror on account of lobbyists who consider the very utterance of “sex” prurient. The United States, therefore, is rampaging against the progressive wave and looking to revert to old methods of wholly disregarding the needs and rights of consenting adults and re-establishing its Puritan perspectives, even in the era of the internet.
- Conclusion
Sexual expression is, without a doubt, a difficult negotiation in norms, policy, and law everywhere. States, therefore, tend to do away with complicated issues in regulating sexual expression by granting unfettered discretion to Courts and executive authorities. The prominence in the overbroad use of “obscenity” and “community standards” is evidence that sexual expression is still stigmatised and otherwise as a form of expression. It has not yet, made its way into mainstream human rights let alone legislative discourses as a function of consent. Regardless of the difference in national norms of appropriate expression, however, some consensus on the metric of its limitation exists. Lines are drawn at the verge of obscenity while the depiction or use of minors, sexual violence, and overt harm result in punishment in almost every state.
However, given that the internet is here to stay and sexual expression therein is inevitable, there are lessons to be learnt from Australia’s shift from censorship to categorisation and emphasis on consensual exchanges, and Canada’s balance of harm and consent in the jurisprudentially protected freedom of sexual expression. The former’s technical prowess in tackling AI-based regulation mechanisms and the latter’s developing sensibilities towards unconventional sexual exchanges in the form of kinks are commendable. Unfortunately, however, several states are following suit to America in the rise of the far-right, and with it, blanket restrictions on sexual expression online. While there is much to do globally to bring sexual expression on par with all other forms of expression online let alone under a consent-driven framework; one can only hope that states will eventually deem their citizens capable of autonomy- one law at a time.