“What Santorum would consider obscene is obviously far greater than many Americans,” he said. “Sexual films of consenting adults that are watched by consenting adults are generally presumed to be pornographic but not obscene.”
Turley is less sure than Volokh that judges and juries would go along with a crackdown. “Federal courts,” he explained, “are reluctant to define movies or pictures as obscene based on such different opinions in society. For that reason, Santorum’s view of the standard falls well outside of the accepted view of the case law,” he said.
“Santorum’s suggestion of a crackdown also ignores the fact that this material is widely available on the Internet with thousands of foreign sites,” Turley added. “An attempt to prosecute standard pornography would result in bizarrely uneven enforcement.”
In a primary season laser-focused on talk of “job creation,” said Turley, Santorum’s anti-porn proposal would “attempt to criminalize an industry that is supported by millions of Americans.”
“Practically speaking, nobody is enforcing this,” said Volokh, explaining that in the 1990s, Internet porn wasn’t a priority for the Clinton administration, and that by the time the Bush administration took the helm in the early 2000s, “it seemed unlikely that anyone could win the war on porn online.”
But that won’t deter Santorum. He promised in his anti-porn statement to appoint an attorney general who would carry out his wishes.
A spokeswoman for the Santorum campaign didn’t respond to a request for comment about the mechanics of his promised crackdown.
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