Note

Shielding Children from Pornography by Incentivizing Private Choice

In March of 2016, Playboy stopped publishing images of naked women in their magazines. According to the company’s chief executive, Scott Flanders, “[the] battle has been fought and won . . . . You’re now one click away from every sex act imaginable for free. And so it’s just passé at this juncture.” In stark contrast to the world of past generations, “[n]ow every teenage boy has an Internet-connected phone . . . . Pornographic magazines, even those as storied as Playboy, have lost their shock value, their commercial value and their cultural relevance.”

One consequence of modern technological advancements is that online pornography has become both prevalent and highly accessible to children. Though some children access pornography intentionally, many are exposed to pornography unintentionally, often at very young ages. Some adults are dismayed by this new normal, arguing that exposure to pornography and its inherent messages is harmful to children. Others argue that there is evidence that pornography may not be harmful after all, at least when it comes to its consumption by teenagers. Still others seem to approach the issue from a more neutral perspective, viewing the prevalence of online pornography as an inevitable new reality we simply need to learn how to live with. This difference in perspective raises the question of whether children’s easy access to online pornography is a problem we should address.

Part I of this Note argues that children’s easy access to online pornography is indeed a problem, and it is time for Congress to revisit this issue. Part II provides an overview of Congress’s attempts to deal with the problem up to this point, most of which have been unsuccessful. Part III proposes that Congress pass legislation that awards financial incentives to Internet Service Providers (ISP) and Mobile Data Providers (MDP) who provide default filtering that adult customers can easily turn off. Part III also explains why passing this type of legislation is constitutionally permissible. Finally, Part IV argues that passing this type of legislation is normatively a good idea.