The Limits of Free Speech Libertinism

The meaning of the GOP's "porn exception" on free speech

During the final month of the 2024 campaign, in an apparent last-ditch effort to appeal to young men who were defecting from the Democratic Party, PACs backing Kamala Harris released ads warning that a Republican administration would ban pornography. To those old enough to remember, it felt like a brief throwback to days when liberals celebrated Larry Flynt as a champion of free expression, over and against the censorious religious right—and an abrupt reversal of the usual positions taken in last year’s presidential contest. As Greg Conti notes in Compact this week, “[f]ree speech was integral to the Trump platform and the Republicans’ 2024 strategy generally,” whereas leading Democrats seemed to regret the existence of the First Amendment.

The pro-Harris ads were somewhat but not entirely misleading. Project 2025, the policy blueprint written to guide Trump 2.0, included a proposed porn ban, reflecting an emerging consensus among conservative politicians, pundits, and intellectuals. Moreover, as Stephen Adubato wrote about this week, conservative legislators have also introduced porn bans and restrictions in a number of state houses in recent years. A few of these have passed or seem likely to, though to what extent they will actually succeed at limiting minors’ access to online pornography is another question.

It is somewhat paradoxical that the GOP’s revival of an anti-porn stridency faintly reminiscent of ’90s Moral Majority rhetoric occurred in the same era that, as Conti documents, the party redefined itself as a bastion of free speech absolutism (under a leader known for a certain history with the porn industry). Perhaps cordoning off debates about political speech from debates about obscenity and treating them as entirely distinct matters has a certain intuitive logic. However, over the course of America’s constitutional, legal, and cultural history these two questions have never been easily separable.

Due to the salience of politically motivated censorship, it is somewhat forgotten that earliest debates about free speech online were focused on porn. In July of 1995, a watershed year for the internet, Time magazine published a much-discussed story on “Cyberporn.” The cover of the issue featured a pale, wide-eyed preteen boy bathed in the sinister glow of a screen on which untoward acts were presumably taking place. The same year, the bipartisan Senate duo of James Exon and Slade Gorton drafted the Communications Decency Act, which was later incorporated into the Telecommunications Act and signed into law by Bill Clinton in early 1996.

It was in response to the law’s anti-porn provisions that the influential cyberlibertarian ideologue John Perry Barlow laid out the case for online free speech absolutism in his “Declaration of the Independence of Cyberspace,” delivered as a speech at the World Economic Forum in Davos on the day Clinton signed the Telecommunications Act. The following year, the Supreme Court in effect ratified Barlow’s laissez-faire views in its decision in ACLU vs. Reno, which upheld the argument of the ACLU that the “decency” portion of the new law entailed an “unnecessarily broad suppression of speech.”

Clarence Thomas joined John Paul Stevens’s majority in striking down the CDA in 1997, but this year, he wrote the majority opinion in Free Speech Coalition vs. Paxton, which upheld a Texas law requiring age verification for adult content. It was an indication that the warnings in the pro-Harris ads weren’t entirely fantastical: a broad conservative turn against online porn is currently underway in legislatures and the judiciary. Of course, if you want evidence that the GOP’s commitment free speech isn’t entirely solid, stronger evidence comes from the reaction to Charlie Kirk’s assassination, which saw Attorney General Pam Bondi and Donald Trump himself denouncing “hate speech,” other members of the administration seeking to get people fired for social media posts, and the FCC’s Brendan Carr threatening to revive the “public interest” standard. Nonetheless, it is noteworthy that the party that claims to advocate maximal free expression online carves out an exception for the issue that animated the first debates on the subject.

The porn exception hints at a deeper problem with conservatism’s current cultural politics than MAGA’s recent hypocrisy on “cancel culture”: An embrace of free-speech maximalism is in tension with the right-wing critique of post-1960s American culture as a product of the judiciary-led “rights revolution.” This tension becomes evident when we contrast attitudes about free speech with those about not just pornography but sexual freedom more broadly. Both free speech and free love were causes of the New Left; sometimes, they converged, as in the obscenity trials of countercultural authors like William S. Burroughs and Allen Ginsberg. The loosening of mores around speech and sex was part of the larger cultural evolution of the late 20th century—and the rights-expanding jurisprudence that ratified it.

Debates over sexual freedom, like those around expressive freedom, have become riven with contradictions of late. Even as conservatives have capitulated on matters like gay marriage, and Donald Trump has sought to neutralize abortion as an issue after Dobbs became an electoral liability, liberals have started having second thoughts about the sexual revolution. This was clearest during #MeToo, which revived, as Ross Douthat put it in the Times, “a conservative-coded critique of the sexual revolution.” This had a precedent in debates about porn from just before the internet era, when left-wing feminists like Catherine MacKinnon and Andrea Dworkin entered into alliances with conservatives to seek restrictions on obscene content.

Political correctness, the prototype of today’s liberal censoriousness, took off around the same time as the anti-porn crusade. Like anti-porn feminism, it was a backlash from within liberalism to the post-’60s liberalization of American culture. As the individualistic morality championed by the New Left eroded social, cultural, and institutional constraints, the experimentation of the earlier era gave way to a sense of fragility and vulnerability, which in turn prompted the ad hoc assertion of new norms. It was on the same college campuses where cultural liberalism reached its most advanced stage that speech codes first sprang up alongside standards of “affirmative consent.”

The internet was infused with New Left sensibilities from its origins. Barlow— who before he became a digital pioneer was an acolyte of Timothy Leary and lyricist for the Grateful Dead—was typical in seeing the internet as a laboratory for bringing the dreams of the ’60s counterculture to fruition. The architecture of the platforms we use daily in many ways reflects these sensibilities, so common among the founding tech generation. In that sense, the liberal censoriousness of recent years may be seen as akin to what anti-porn feminism and political correctness were when they appeared on progressive campuses in an earlier era: a haphazard attempt to erect new guardrails after the dismantling of the prior ones led to unpalatable results.

From its origins, conservative thought has emphasized that a functional society requires, in addition to formal rights and laws, the cumulative moral wisdom embedded in culture and traditions. But as Conti remarks, “social media remains a kind of un-normed space. It has unsettled our traditional distinctions between public and private, yet no new expectations or conventions have established themselves.” In other words, the “context collapse” that characterizes digital social life removes us from social realms in which local, tacit norms modulate our behavior and pushes us into a rough-and-tumble melee in which normal social cues and incentives fall away.

Here is where I perhaps differ from Conti. It isn’t at odds with an expansive understanding of the First Amendment or a belief that free, open, sometimes uncivil debate is integral to US politics to also be concerned about the precipitous erosion of all and any meaningful shared cultural norms. To embrace the wrecking ball of the internet as a means to wage war against the newfangled rules clumsily imposed by liberal technocrats—as the right has tended to do—is to neglect the fact that the same mechanisms are equally corrosive of other shared value systems. Conservatives who decry the corrosive social effects of online porn, as well as religious groups that seek to limit members’ time online, seem to recognize this reality, at least in part. Having freed us from all constraints, digital existence vacillates between hyper-individualist free-for-all and onerous attempts to reassert order.

Liberal accounts of the pathologies of our online speech environment tend to combine moral panic with bloodless technocratic jargon. “I’m running out of ways to explain how bad this is,” lamented tech reporter Charlie Warzel a month before last year’s election. Perhaps Warzel’s lexicon was deficient because the bloodless jargon those in his milieu prefer—like “misinformation” and “disinformation”—tends to reduce what is ultimately a moral question to a quantitative technical problem of information management.

Conservatives have an opportunity to furnish a richer moral language for making sense of our predicament, but have mostly failed to do so. Instead, they have often gone further even than what Conti calls “cultural libertarianism,” embracing what I would describe as “free speech libertinism.” The lionization of Elon Musk, whose habits and attitudes can be traced back to Silicon Valley’s foundational New Left sensibilities, is a case in point.

Last year, in an interview with Joe Rogan released just before the election, JD Vance made a small move in a different direction when he offered a theory of why so many liberals had turned against free speech. The issue, he argued, was that social trust had collapsed, leaving people unsure who or what to believe. Media and institutions responded to the declining faith in them by “trying to reimpose that social trust on from the top.” But when social trust was higher, it “came organically right from the way that American society worked.” “A lot of great things that we do,” he said, “come from high levels of social trust,” but “you’ve gotta reestablish it organically. You can’t try to force it on people.” (Vice President Vance might reflect on candidate Vance’s admonition the next time he is tempted to use his bully pulpit to enjoin citizens to report people to their employers for their ill-considered posts.)

The nearly decade-long liberal crusade against online misinformation has not only failed but exacerbated the very ills it claimed to be solving. But some of those ills—collapsing trust, epistemic and social fragmentation—are not figments of liberals’ imagination. Opposition to censorship is necessary but not sufficient, because it doesn’t address the cultural crises that stoked the demands for it in the first place—first from the left, and now, in the wake of the Kirk murder, from the right. The question serious reformers must ask is whether it is possible to avoid top-down heavy-handedness while also acknowledging the moral and cultural limits of free speech libertinism.

This week in Compact

The issues discussed above were on my mind because of three articles that appeared in Compact this week: the aforementioned ones by Conti and Adubato, as well as Dylan Partner’s review of Fara Dabhoiwala’s What Is Free Speech? Also in our pages:

• Peter Hitchens on the UK government’s digital ID agenda

• Thomas Fazi on Ukraine’s self-defeating territorial ambitions