In December, an article in the New York Times brought to light disturbing allegations of child rape and sex-trafficking depicted in large swaths of Pornhub’s content. The report resulted in Pornhub deleting 13 million of the 17 million videos on the platform. Lost in the commentary that ensued, however, was the harm that Pornhub and its competitors inflict on children every day.
Recall that Pornhub is readily accessible to anyone capable of entering a Google search. Let that sink in. We live in a reality where pornography with titles such as “Extreme Choking” and “Tiny Asian Teen” are accessible to virtually any child who can spell the word “sex” and has access to a computer — no log-in credentials, no age-verification necessary.
The pornography industry has every incentive to keep it that way. Children are watching pornography, and they’re doing so younger than ever before. Like Facebook, pornography has capitalized on the monetization of ads. The pornography industry now generates more annual profit than the MLB, the NFL, and the NBA combined. The lack of alarm at Pornhub is unsurprising, but what’s our excuse?
Perhaps we’re indifferent. More generously, maybe we’re confused. Many people seem to believe that pornography’s free speech protections render its activities, however flagrant, immune from recourse. In response, a frustrated minority has called for the end of First Amendment protections for pornography entirely. Whatever merit these legal arguments may have, the task of persuading the courts and the public to alter their views radically on free speech in this area is as onerous as it is unnecessary.
Here’s why: There’s a long-standing legal doctrine that, while currently unapplied to the pornography industry, clearly compels these companies to do much more to keep their content out of the hands of children.
“Attractive Nuisance” is the doctrine that holds a property owner liable for injuries suffered by a child who trespasses on their land. Generally, three elements must be shown: First, the landowner must have knowledge of a dangerous condition on his property. Second, he must know (or have reason to know) that children are likely to trespass on his property. Third, the condition must pose an unreasonable risk to children that they are unable to appreciate.
To avoid liability, a landowner must show he exercised due care (installing a high fence or locking up industrial equipment will do the trick). The application of traditional property law to the virtual space is no longer controversial. According to the Supreme Court, the internet, like the world, contains public squares and private property, complete with the rights and liabilities therein. Attractive nuisance ought to be used to pursue legal damages against pornography publishers who fail to exercise due care to protect children from their content.
Now, to simply apply the facts: First, Pornhub knows, or has reason to know, that its content poses a danger to children. The scientific consensus is unambiguous: Adolescent exposure to pornography, especially on a regular basis, has lasting impacts on the brain — changes that are predictive of unsafe and early sexual activity, sexual aggression, the objectification of women, and gender role distortion. Second, Pornhub knows that children “trespass” on its site, that is, accesses their content without express invitation (an open secret that can be easily proven in court). Third, pornographic content poses an unreasonable risk to children that they are unable to appreciate. This is common sense, but it’s also the bedrock of our pre-existing laws. The reason we withhold the privilege of consent from children with regard to sex and sexual content is precisely because they are incapable of understanding the consequences, risks, implications, and complexity of sex.
Finally, Pornhub’s failure to take even performative efforts to protect children from accessing its content clearly falls short of the standard of due care under the doctrine.
It’s well past time to protect children from the pornography industry. Attractive nuisance liability already exists in our state laws. Federal and state legislators can do more to make clear, however, that this law is applicable and enforceable against these companies and their websites. New legislation making that fact clear to judges and the public, with appropriate fines and penalties tailored to the billion-dollar industry, should immediately be passed. The legislation is consistent with the Constitution and should garner bipartisan support.
Madison Breshears is a law student in Washington D.C.
