The Internet Is For Accessible Porn

Why do you think the ‘net was born?

Porn! Porn! Porn!

The Internet Is for Porn – Avenue Q

January 2020, Yaroslav Suris, a deaf man living in Brooklyn, NY filed a class action lawsuit against Mindgeek Holdings in federal court. You may not be familiar with Mindgeek by its name, but you have probably heard of some of the websites the company operates like Pornhub, RedTube, YouPorn and Brazzers. In his complaint, Suris alleged that many of Mindgeek’s websites violate the Americans with Disabilities Act by not providing closed captioning for their videos. News of the lawsuit went softly viral on social media among media outlets such as TMZ, Complex, and Daily Mail. Many articles took on a tongue-in-cheek tone reporting the details of the lawsuit, especially when naming the titles of some of the videos that Suris identified as inaccessible.

It wasn’t until February 2020 coming across a Slate article about audio descriptions for PornHub videos that I learned about the lawsuit against Mindgeek. After finishing the article and wanting to find out more about PornHub’s accessibility initiatives I closed my office door, opened incognito mode, and searched for “PornHub Accessibility”.

My next stop on my fact-finding mission was social media, specifically Twitter. The digital accessibility community on social media is plentiful as it is outspoken about issues of inaccessibility, but while web accessibility lawsuits like Robles v. Domino’s and Gil v. Winn-Dixie are well-known and discussed among advocates, Suris v. Mindgeek had barely made a blip.

Domino’s and PornHub might both have big sausage pizzas but only one of those pizzas is considered obscene, the other is pornography.

There aren’t many topics that are as loaded in America as pornography. The ethical and moral questions that appear at the mere mention make it difficult to discuss, even from a clinical perspective. It wasn’t much of a shock the lawsuit against PornHub went virtually unmentioned except for brief initial novelty.

But while Americans might find discussing porn difficult, they seem to have no trouble consuming it.

It’s not easy to track down comprehensive numbers on Internet porn in the United States, but using data directly from PornHub, which is one of the most visited porn sites on the Web, it receives over “100 million daily visits and 36 billion visits per year.” The United States provides the highest daily traffic out of any other country.

Given that one in 4 adults in the United States has a disability, it doesn’t take a huge leap to realize that many of PornHub’s 100 million daily visits are from disabled people.

Accessibility is a human and civil right. This is a statement I have said in some form or another in all of my presentations on web accessibility and that I wholeheartedly believe; but as easy it is for me to make a statement at the end of a conference keynote, I can’t pretend it’s as easy to be the biggest champion of a topic within in that belief that many people consider offensive and obscene.

Let me pause here and give you a very brief (ish) legal overview of obscenity in the United States. 

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On November 13, 1959, Nico Jacobellis, manager of Heights Art Theater in Cleveland Heights, Ohio, premiered the latest film to the theatre’s lineup, Les Amants (“The Lovers”) by French director Louis Malle. The film was part of the theatre’s intent to bring more sophisticated entertainment to Heights Art’s audiences.

Les Amants centers on a woman whose restlessness leads her to leave her husband and lover for an affair with a new man. On its own, the film’s plot made for a provocative choice in 1950s America, but Les Amants also includes a love scene. The scene wouldn’t be out of place in a network television drama today, but at the time was considered so explicit that some theaters would only show a sanitized version of the film. Heights Art Theater screened the original, unaltered version.

The first showing of the film was uneventful, but as the second showing began, Cleveland Heights police arrived at the theater. The police confiscated the film and arrested Jacobellis. He was eventually found guilty on 2 counts of possessing and exhibiting an obscene film and fined $2,500. Jacobellis appealed the ruling but it was upheld by both the Ohio Court of Appeals and the Supreme Court of Ohio.

In 1963 the U.S. Supreme Court agreed to hear Jacobellis v. Ohio and in a 7-2 decision reversed Jacobellis’ conviction on First Amendment grounds. While the Court’s decision was a positive outcome for Jacobellis, it didn’t clear up the ambiguous standards of what constituted obscenity that existed at the time.

If you’ve heard the phrase “I know it when I see it” in reference to something that is both inconsistently a subjective and an observable fact; it was first used in Jacobellis v. Ohio.

Supreme Court Justice Potter Stewart in his statement on the Court’s ruling, explained why Les Amants was not obscene under definitions and tests from a previous ruling (Roth v. United States) and was protected speech that could not be censored:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Jacobellis v. Ohio, 378 U.S. 184 (1964)

It wouldn’t be until 1973 in Miller v. California, the Supreme Court would establish a more succinct standard, still used by courts today, to determine whether works can be considered obscene. The Miller Test includes the following three criteria, each that must be met:

1. whether ‘the average person, applying contemporary community standards would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’
2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
3. whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value. (Legal Information Institute)

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Still with me? The overview might be extraneous, but it only gives you a glimpse inside Pandora’s box that pornography and obscenity open when connected to a topic or work. Nico Jacobellis wasn’t looking to provoke or shock when he screened Les Amants in 1959 and stated in an interview that he simply wished to introduce mature films to audiences “who take their entertainment seriously and wish to think.” The Miller test isn’t without its problems and flaws and the rise of the Internet has highlighted the complex challenges of applying standards that are used to weigh what’s legally hard-core pornography and obscenity on technology and platforms that couldn’t be imagined when established. What is ‘community standards’ when the Internet can potentially make the entire country and even the world your community?

I am not a lawyer or legal analyst. I am, however, a web accessibility advocate. So while I can’t weigh in on the legal aspects and issues of pornography other than I what I recounted earlier, I can say that with all certainty that if porn is on the Internet and it’s not illegal, it must be accessible. Being an advocate, I have to point out that just like a large portion of the content on the Internet, porn websites are highly inaccessible.

(Yes, I visited many porn websites and evaluated them for accessibility)

Like any other industry that operates on the Internet, porn companies and websites must provide accessibility for their disabled customers.

Accessibility is a civil right and in America that means accessible porn.