Ramesh Ponnuru, senior editor of National Review Online, tipped me off to a nefarious proposal on the NYT op-ed page:
It's not every day that a New York Times op-ed breezily suggests regulating a $9 billion industry out of existence. This is probably a good thing.
Indeed, it is. Once again we find the Old Gray Lady attempting to ruin our way of life by oppossing Big Business. So which industry is the target this time? Automotive companies that make SUVs? Gun manufacturers? Mel Gibson’s production company?
The op-ed by Jonathan Knee, director of the media program at Columbia Business School, lays out the heinous scheme:
What if we were to enact laws that made it illegal to give or receive payment to perform sex acts?
…
The policy justifications for such a law are similar to those for laws against prostitution: society objects on principle to the commodification and commercialization of sexual relations, even between consenting adults. Such a law would not implicate the profanity or nudity that has been the recent focus of the F.C.C. — it would deal exclusively with sex acts, which the Internet seems to revel in.
This law would put the largest pornographers out of business: they could not pay someone to perform in a hard-core pornographic film.
This is an outrage. To think that the Times would propose to put the…wait a second, this is a proposal to put the porn industry out of business? And NRO is against the idea?
Well, yes and no. Ponnuru dances around the issue by claiming,
My own objection is different. I'm open to the idea of censorship for moral purposes, especially at the local level. But that argument has to be made openly, not tap-danced around. And if Knee is interested in regulating pornography because it corrupts morals and undermines character, then his proposal is insufficient. It would not touch pornography that uses computer animation or other forms of simulation; it would not, presumably, do anything about the vast stock of pornography already on the market. His idea is novel and interesting, but just not sufficiently well developed to form a basis for action.
Although I’ve had my differences of opinion with him in the past, I respect Ponnurru and his point of view. He’s both extremely intelligent and capable of making and a well-reasoned argument. Which is why I’m disappointed by his rather weak “objection.”
Whether the proposal is insufficient to stop the production of all forms of pornography is irrelevant to whether it should be implemented. Rarely do we find “silver bullet” policy measures that eradicate all aspects of a cultural problem. It’s unlikely that Ponnurru would accept this “fix it all or don’t bother trying” approach if it were applied to other issues. Was it a waste of time, for example, when President Bush signed the partial abortion ban because it didn't stop all abortions?
Knee’s idea deserves more than to be casually dismissed as Ponnurru has done. For far too long the sex film industry has been allowed to hide behind the First Amendment. But as Knee points out,
“The First Amendment does not protect otherwise illegal activities simply because they are part of a movie. If it did, bank robbers would bring along a film crew to every heist and seek constitutional protection for their chosen vocation.”
Indeed, if pornographic films are legal then prostitutes should simply carry video cameras with them to work. Their actions, which would normally land them in jail, would be protected “speech” once it was captured on film. No doubt the ACLU would even rush to the to the defense of these entrepreneurial filmmakers. Instead of defending NAMBLA’s right to incite the rape of young boys, the ACLU could be on the speeddial of every pimp in the country.
Even if we concede that citizens have the right under the First Amendment to view hardcore pornographic films, there’s no reason why we could not make it illegal to give or receive payment to perform sex acts. Prostitution is, after all, still prostitution no matter how much video equipment is in the room. The idea is so stunningly obvious that it makes you wonder why no one has proposed it before.
An even better question, perhaps, is why it’s being endorsed by the liberal NYT op-ed page and being rejected by the ostensibly conservative NRO? Have the Maxim-cons finally taking over our beloved online publication? Say it ain’t so, Rameesh, say it ain’t so.
(Hat tip: Christus Victor)
Update: Turns out that Knee's proposal isn't exactly a new tactic. PBS has an interview from 2001 with a former federal prosecutor who notes:
But it's pretty well known that there are a few producers who make the movies, and they pay the performers, the girls and the guys, per act. Some of the people were convicted under the prostitution laws of California for hiring the people to make the movies, because they pay them to do sex acts, and that's prostitution.
1
Joe, the immediate question this raises is, Why exactly should prostitution, or pornography for that matter, be illegal. You say, "society objects on principle to the commodification and commercialization of sexual relations, even between consenting adults."
On what principle does society object? And with what justification? Are Nevada's legal and regulated brothels leading to our nation's cultural decay, just as same-sex marriage is evidently sounding the death knell for traditional male/female unions?
Sounds a little like some folks once again wanting to tell other folks what they can and can't do on their own time and their own dime, when they might ought to be turning the dial or clicking the remote.
posted on 05.03.2004 4:37 PM2
Joe,
While I basically agree with you, I think you are being a little unfair to Ponnuru. It may be that we are forced to agree that when it is merely simulated sex, we do not have the same moral authority to regulate simulated sex. In other words, Jonathan Knee's proposal may be an intellectually honest approach. I do think that the distinction between porn and prostitution is a bit too fine. Nevertheless, I believe Ponnuru's point is that we should be intellectually honest about our goals if we want to make good policy.
posted on 05.03.2004 5:12 PM3
More talk about government intrusion on private activity that negatively affects exactly 0% of the participants. Get me out of this puritanical hell hole. We even have the liberals lining up for this B.S. nowadays. If you can't handle looking at a naked person. If that somehow causes you to go insane or grow hair on your palms, then don't look at it. Grow up and learn the self control that we are supposed to have. If we require government to tell us what is and what is not acceptable for our own personal consumption, then we might as well throw out the democratic republic and bring in a totalitarian government. I know Pat Robertson and the rest of the religious right have one they are willing to sell you.
posted on 05.03.2004 5:23 PM4
Exactly 0% of the participants, huh? Guess you don't know much about the porn industry - sure, a lot of people thrive in it, but a lot of people have their lives destroyed, too...
By the way, as far as "religious right" goes...
A) You did notice that this is the 'Evangelical Outpost', right?
B) Why is it that porn is the gold standard of so many when it comes to freedom? Sure, extremists on the left want to regulate speech, ban firearms, and control everyone's paychecks, but extremists on the right want to... Ban Porn!!! Ahh!!
posted on 05.03.2004 11:52 PM5
Dscott: Not everyone who follows these threads and posts is an evangelical, as I'm sure you've noticed. Some are dissenters who are skeptical of the evangelical worldview. I've noticed similar dissent represented on ex-Christian blogs. Some dissenters are trolls, and some are not. I think the tone and intent of the post determine that.
As for the regulating of speech by "extremists on the left" (I assume you're referring to hate speech), I assure you they have company on the right. When Bush visited Knoxville a couple of months back, all dissenters were moved far away from the President's route and restricted to "free speech" zones where no one would have to see or hear them. Bush supporters were allowed to take their places along the route, signs and all.
Pornography is disgusting, but no more so than other protected speech and behavior, like the Ku Klux Klan's and that of cop-hating, misogynistic rappers.
posted on 05.04.2004 7:21 AM6
My (possibly incorrect) understanding is that paying actors to perform sex acts is not prostitution, only because the California legislature passed a law exempting it. This could be seen as a cynical attempt to keep the porn industry in California; but I think at least part of the justification was that it was better to have it in regulated in Hollywood than un-regulated in Tijuana. I'm not endorsing this view-point, just speculating that it exists.
It sounds like the conservative opposes the law because it's a restriction on industry rather than on the individual. The liberal is prepared to support it for the same reason. I can't tell if that's wierd, or just buisness as usual.
posted on 05.04.2004 7:58 AM7
You don't even have to go there Joe. Just revoke their copyright protection.
posted on 05.04.2004 12:04 PM8
Um, hate speech is a lot more than having a no-protest zone... it involves legal penalties for certain words or phrases... saying someone has to protest a few miles from site is vastly different from threatening to put people in jil for using certain words... a la that poor guy "Lonnie" that was nearly put in jail for calling someone "N-" when the man had just assaulted Lonnie's wife... Tonguetied on Fox was very interested in it for a while,but then dropped it, so likely the charges were thrown out, but still... arressting someone for using a racial slur...
By the way, back to the 100% safety of the porn industry...
I don't know how well that link will work, but basically I was just reading on Yahoo about a voluntary quarantine of adult movie actors in CAlifornia due to evidence of an HIV outbreak...
posted on 05.05.2004 2:36 PM9
DScott, I'm not defending the extreme sort of hate speech penalties you refer to. I'm a real civil liberties kind of guy. Let me ask you this, though: which would you rather see limited, the right to publicly express dissent or your right to utter slurs?
posted on 05.05.2004 3:13 PM10
Joe,
Thanks for the kind words, and the interesting criticism. I had not thought about the Knee proposal as an entering wedge for stronger regulation; I'll have to consider whether it would change what was considered legally and politically possible in this area.
My main objection to the article is that it depends on the premise that moral harms can rightly be regulated against without making the argument for that premise and, indeed, half-pretending that it does not depend on it. Social conservatives have won some tactical victories this way--using zoning laws to do the work that would once have been done with straightforward morals laws. But I think they have lost more than they have gained by using this approach. (One minor point: It's not fair to say that NR is against or for something just because one of its writers is.)
posted on 05.07.2004 9:49 AM