There Are Lots of Legit Reasons to Look at Pornography: New Restrictions on NIH Grants Are Unscientific And Possibly Illegal

There was a moralistic, unnecessary, and wholly unscientific new restriction enacted on funding for the National Institute of Health as part of the appropriations bill passed in January. The new legislative mandate forces researchers who rely on government funding to place anti-pornography filters on their computer networks. There are serious potential consequences, such as filters overblocking sites that are anatomical rather than pornographic in nature as well as lost funding for scientific research that may legitimately need to access pornographic sites. The end result? Members of Congress, rather than the scientific community, imposing restrictions on what researchers should be investigating.

The Consolidated Appropriations Act was signed into law on January 17, 2014 and determines the funding for a range of government agencies and projects. Included in this act is a budget for the National Institute of Health, which itself is an enormous source of support for scientific research of all stripes. The new mandate has a provision stating that, “None of the funds made available in this Act may be used to maintain or establish a computer network unless such network blocks the viewing, downloading, and exchanging of pornography” and then provides a carve-out for criminal investigations.

This restriction is likely a reaction to a long-running controversy around NIH-funded research projects that involved pornographic websites. In particular, the University of Minnesota Men’s INTernet Study’s (MINTS) SexPulse research program, which was investigating ways of promoting safe sex practices among men who have sex with men (MSM), has been heavily criticized by conservative groups for integrating safe-sex surveys and education onto pornographic websites. But this debate isn’t new; back in 2004 the director of NIH was responding to criticism of NIH-backed research into pornography and prostitution, saying he “fully support[s] NIH’s continued investment in research on human sexuality.”

There are both legal and policy reasons why the restriction is ill-advised. First, the law.

Generally, the government cannot engage in direct censorship; the First Amendment prohibits it from doing so. However, Congress passed a law called the Children’s Internet Protection Act (CIPA) which required schools and libraries that receive so-called E-Rate funding to have Internet filtering software as a condition of funding. In 2003, in United States v. American Library Association, the Supreme Court held that CIPA was constitutional.

We are unaware of any court challenges to the new NIH mandate, but there are many important differences between it and CIPA.

First, the NIH mandate applies to “pornography,” a layperson’s term that is not defined either in the mandate or elsewhere in the law. By contrast, CIPA filtering is limited to three specific categories: obscenity, child pornography, and material that is harmful to minors. All of those are terms defined in CIPA itself or elsewhere in the law, and the scope of all three combined generally is considered to be less broad than common understandings of pornography. (For example, a typical Playboy centerfold might be pornographic to some, but is not obscene, child pornography, or harmful to minors.)

Second, unlike the NIH mandate, CIPA has two important limitations. Even when a filter is required, it can be turned off on request by an adult user. CIPA also has a specific exemption for bona fide research or other lawful purposes, but the NIH mandate has none. The only exemption from the NIH mandate is for law enforcement purposes.

Thus, notwithstanding the CIPA case, there are reasons to question the legality of the new NIH mandate.

But apart from the law, and regardless of how you feel about research that involves pornography, there are two important reasons why everyone should oppose this new federal restriction on medical research:

1. Internet filters are inaccurate. As we noted when discussing the Children’s Internet Protection Act, filters block far more than explicit websites. Filters have been known to block LGBTQ-themed sites, websites for art museums, information on teen smoking, Second Amendment advocacy sites, and even sites about role playing games.
   By throwing these filters onto the computers of research institutions across the nation, we run the risk of inadvertently blocking all sorts of legitimate content from scientists engaged in research.
2. Filters are secretive. One way to ensure that Internet filters aren’t blocking non-pornographic content (such as anatomy websites or sites covering issues like testicular and breast cancers) is to have transparency around what content is actually being blocked. Unfortunately, most Internet filters hide their blacklists and algorithms, claiming trade secrets. This means that U.S. scientists will, by and large, have no simple, objective way to choose the least-censoring Internet filter possible. And we, the American public, have no simple, objective way of seeing how many non-pornographic websites are being blocked by this new restriction.

Perhaps most importantly, researchers ought to be able to access pornographic material. While it may make some people uncomfortable, there are research topics that unquestionably benefit from access to pornographic websites. For example, there are research projects examining the spread of HIV associated with viewing pornography depicting unprotected anal intercourse, research examining whether frequent pornography viewing has a relationship to sexual aggression for certain groups of men, and studies on a potential relationship between men's pornography consumption and their attitudes supporting violence against women.

These and no doubt countless other areas of investigation could potentially be hindered by unwieldy restrictions on federal grants for research.

Congress shouldn’t dictate what topics are worthy of investigation. Excising Internet pornography from the realm of things researchers should examine when working to understand the human body and mind places unnecessary barriers on scientific curiosity.

Let’s support rigorous, uncensored scientific research.