# Is pornography ever protected by the Commerce Clause?
**URL:** https://boards.straightdope.com/t/is-pornography-ever-protected-by-the-commerce-clause/684424
**Category:** Factual Questions
**Created:** [March 24, 2014, 6:11am UTC](https://boards.straightdope.com/t/is-pornography-ever-protected-by-the-commerce-clause/684424 "2014-03-24T06:11:19Z")
**Posts on this page:** 10
**Page:** 1
### Author:  [@Reply](https://boards.straightdope.com/u/Reply)
#### Post date: [March 24, 2014, 6:11am UTC](https://boards.straightdope.com/t/is-pornography-ever-protected-by-the-commerce-clause/684424/1 "2014-03-24T06:11:19Z")
With (in theory) different standards of community decency and obscenity across the United States, such as Utah making all porn [illegal to distribute](http://attorneygeneral.utah.gov/protecting-utah/from-porn/obscenitypornography-laws/), has the federal government ever stepped in to say something like “No, you can’t interfere with this citizen’s ability to buy porn over the Internet from another state”?
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### Author:  [@Reply](https://boards.straightdope.com/u/Reply)
#### Post date: [March 24, 2014, 6:17am UTC](https://boards.straightdope.com/t/is-pornography-ever-protected-by-the-commerce-clause/684424/2 "2014-03-24T06:17:38Z")
Sorry, I should’ve searched harder before asking. To answer my own question, yes, it sometimes happens. Relevant links:
Overview: [Dormant Commerce Clause - Wikipedia](https://en.wikipedia.org/wiki/Dormant_Commerce_Clause)
Detailed analysis: [http://www.yalelawjournal.org/pdf/110-5/goldsmith-sykesfinal.pdf](http://www.yalelawjournal.org/pdf/110-5/goldsmith-sykesfinal.pdf)
Example case: [List of Finding of Fact in Internet Censorship Case in New Mexico | American Civil Liberties Union](https://www.aclu.org/technology-and-liberty/list-finding-fact-internet-censorship-case-new-mexico)
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [March 24, 2014, 3:57pm UTC](https://boards.straightdope.com/t/is-pornography-ever-protected-by-the-commerce-clause/684424/3 "2014-03-24T15:57:20Z")
First, obscenity is not legally synonymous with pornography. Second, the courts have spent the last several decades removing local control of pornography. Third, is that Utah page for real? It doesn’t quote a single Supreme Court decision after 1973! How deliberately misleading can you get?
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### Author:  [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)
#### Post date: [March 24, 2014, 11:06pm UTC](https://boards.straightdope.com/t/is-pornography-ever-protected-by-the-commerce-clause/684424/4 "2014-03-24T23:06:58Z")
> [@Reply](#):
>
> With (in theory) different standards of community decency and obscenity across the United States, such as Utah making all porn [illegal to distribute](http://attorneygeneral.utah.gov/protecting-utah/from-porn/obscenitypornography-laws/), has the federal government ever stepped in to say something like “No, you can’t interfere with this citizen’s ability to buy porn over the Internet from another state”?
> [@Reply](#):
>
> Sorry, I should’ve searched harder before asking. To answer my own question, yes, it sometimes happens. Relevant links:
>
> Overview: [Dormant Commerce Clause - Wikipedia](https://en.wikipedia.org/wiki/Dormant_Commerce_Clause)
> Detailed analysis: [http://www.yalelawjournal.org/pdf/110-5/goldsmith-sykesfinal.pdf](http://www.yalelawjournal.org/pdf/110-5/goldsmith-sykesfinal.pdf)
> Example case: [https://www.aclu.org/technology-and-liberty/list-finding-fact-internet-censorship-case-new-mexico](https://www.aclu.org/technology-and-liberty/list-finding-fact-internet-censorship-case-new-mexico)
For the win, in one! Or none, actually.
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### Author:  [@Ethilrist](https://boards.straightdope.com/u/Ethilrist)
#### Post date: [March 24, 2014, 11:08pm UTC](https://boards.straightdope.com/t/is-pornography-ever-protected-by-the-commerce-clause/684424/5 "2014-03-24T23:08:58Z")
I guess it’s just a sign of The Man not keeping us down.
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### Author:  [@Schnitte](https://boards.straightdope.com/u/Schnitte)
#### Post date: [April 29, 2020, 11:54am UTC](https://boards.straightdope.com/t/is-pornography-ever-protected-by-the-commerce-clause/684424/8 "2020-04-29T11:54:45Z")
I’m not quite sure it is conceptually correct to say the Commerce Clause “protects” pornography. The rights codified in the Bill of Rights (in the pornography case, the pertinent one is, of course, the First Amendment) do - they restrict governmental power to legislate and protect the individual against legislation encroaching upon those rights, either by Congress or (as a result of incorporation) the states. But the Commerce Clause doesn’t have this effect; it says that interstate commerce is to be regulated by Congress rather than the states, but it does not put any limits to what Congress could legislate in this field. So the only one protected by it is Congress vis-à-vis the states, not individuals vis-à-vis Congress and/or state legislatures. There could, at best, be an indirect effect benefitting individuals who wish to distribute pornography, in the sense that they could, in case a state attempted to interfere with interstate distribution of pornography, argue that such interference would have to be legislated by Congress.
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### Author:  [@Chronos](https://boards.straightdope.com/u/Chronos)
#### Post date: [April 29, 2020, 12:02pm UTC](https://boards.straightdope.com/t/is-pornography-ever-protected-by-the-commerce-clause/684424/9 "2020-04-29T12:02:43Z")
Note that **Schnitte** didn’t bump this thread; a now-deleted spammer did. So please no zombie jokes, especially no zombie porn jokes.
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### Author:  [@RioRico](https://boards.straightdope.com/u/RioRico)
#### Post date: [April 30, 2020, 1:51am UTC](https://boards.straightdope.com/t/is-pornography-ever-protected-by-the-commerce-clause/684424/10 "2020-04-30T01:51:53Z")
Lacking zombies, can states ban food pr0n, decor pr0n, cigar pr0n, automotive pr0n, or any other obsessive media? Why should body pr0n be singled out?
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [April 30, 2020, 4:05am UTC](https://boards.straightdope.com/t/is-pornography-ever-protected-by-the-commerce-clause/684424/11 "2020-04-30T04:05:03Z")
> [@RioRico](#):
>
> Lacking zombies, can states ban food pr0n, decor pr0n, cigar pr0n, automotive pr0n, or any other obsessive media? Why should body pr0n be singled out?
Because enough people loudly want it to be.
In fact, porn providers are excluded from receiving any assistance from the The COVID-19 Economic Injury Disaster Loan program.
Link spoilered because the page is probably NSFW.
[Alana Evans, president of the Adult Performer Actors Guild (APAG), writes about how discriminatory it is that the $2 trillion coronavirus stimulus excludes sex workers.](https://www.thedailybeast.com/porn-union-leader-to-trump-why-are-you-screwing-us-out-of-our-coronavirus-stimulus-check)
> [@](#):
>
> “Applicant does not present live performances of a prurient sexual nature or derive directly or indirectly more than de minimis gross revenue through the sale of products or services, or the presentation of any depictions or displays, of a prurient sexual nature.”
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [April 30, 2020, 6:10am UTC](https://boards.straightdope.com/t/is-pornography-ever-protected-by-the-commerce-clause/684424/12 "2020-04-30T06:10:47Z")
The debate and case law over legal pornography largely disappeared since the 1970s because with the advent of satellite TV and later the internet, it became simply impossible for a state to prevent people from viewing pornography. In the 1970s when that meant keeping books, magazines, and movies from being shown in theaters out of the state it was possible to try to prevent. I mean, they could devote a large amount of resources towards it, like they do with child pornography, but I think that even the most ardent opponents of it have conceded that it is not worth such effort.
However, they still want to keep it on the outliers of society like strip clubs, pawn shops, payday loan places and other “seedy” types of establishments. They have given up trying to outlaw these places yet still don’t want to subsidize them in any way like with the Covid-19 bailout mentioned by **Exapno Mapcase**.