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April 7, 2004

Risking the World for Porn

Thanks to Prof. Reynolds for the link; his willingness to facilitate broad debate is one reason he's at the center of it all. Let me offer just a quick note to any newcomers that the design of this page can be changed for readability by clicking "Turn Light On" at the top of the left-hand column.

Glenn Reynolds thinks a Baltimore Sun report on Justice Department efforts against pornography indicates a poor political decision for the Bush administration. According to the Sun:

Lam Nguyen's job is to sit for hours in a chilly, quiet room devoid of any color but gray and look at pornography. This job, which Nguyen does earnestly from 9 to 5, surrounded by a half-dozen other "computer forensic specialists" like him, has become the focal point of the Justice Department's operation to rid the world of porn.

In this field office in Washington, 32 prosecutors, investigators and a handful of FBI agents are spending millions of dollars to bring anti-obscenity cases to courthouses across the country for the first time in 10 years. Nothing is off limits, they warn, even soft-core cable programs such as HBO's long-running Real Sex or the adult movies widely offered in guestrooms of major hotel chains.

Frankly, without a direct quote, I'm not inclined to take claims about the extent of the effort — branching into soft-core stuff on HBO — at face value, particularly when put forward by a reporter, Laura Sullivan, who would write this paragraph:

The law itself rests on the landmark 1973 Supreme Court decision in Miller vs. California, which held that something is "obscene" only if an average person applying contemporary community standards finds it patently offensive. But until now, it hasn't been prosecuted at the federal level for more than 10 years.

Got that? The law's existed for more than 30 years, and "until now" federal prosecutors haven't leveraged it... except during the first two decades. But the substantive point, as Reynolds puts it, is that those computer agents would be better allocated elsewhere:

I blame John Ashcroft. No, really, this time I mean it. And if the Administration thinks that this is a good use of their "computer forensics" experts, then they must have decided that terrorists aren't a threat any more.

Six "specialists" are working on something other than terrorism, and that's a signal that the War on Terror has been abandoned? Ms. Sullivan doesn't give us more of an idea of the cost than "millions," which is a pretty broad range, but how many millions not devoted to the multibillion-dollar effort of national defense indicate unduly skewed priorities?

Be the price tag whatever it is, it seems that the Justice Department isn't the only party that can be accused of thinking pornography more important than the war. Reynolds quotes from an email:

I voted for Bush and donated to his campaign and have been looking for reasons to support his reelection. But when I saw your post, I snapped. I just made a small donation to the Kerry campaign...and, living in Massachusetts, I have no reason to be thrilled about Kerry.

Apparently McCain's odd (political) comment about Kerry's not being "weak on defense" has given this emailer license to think that the porn/war decision isn't really a tradeoff. That's quite a bit of weight to put on a politician's Thursday-morning-TV equivocation, if you ask me.

So here's a thought: if the public really is as enamored of smut as Ashcroft's critics believe, why not campaign to change the law? If porn is such an obviously good, or at least neutral, thing, why sidestep the actual issue — involving those six guys and some unknown millions of dollars — by substituting rhetoric about the war? Come out from behind the computer desk and lance the issue head on.

Sullivan describes one of the effects of the law's non-enforcement over the past decade thus:

The strategy in the 1980s resulted in a lot of extreme pornography - dealing in urination, violence or bestiality - going underground. Today, with the Internet, international producers and a substantial market, industry officials say there is no underground.

Rather than funding a ridiculously horrible candidate for President on the hopes that he won't enforce the law, supporters of this activity should redirect their funds toward a campaign to leave no law to enforce. The effort ought to make for some interesting signage.

To comment on a related post over on Instapundit, I don't believe the AMA has found any evidence that watching other people have sex reduces one's risk of prostate cancer. Moreover, by looking for ways to strengthen and encourage marriage, the Bush administration is actually protecting the prostates of American men. Studies show (and experience confirms) that married men are much more sexually active.

Posted by Justin Katz at April 7, 2004 8:02 AM

Two weeks ago, I took my daughters (ages 6 and 2) and my wife to the local Manhattan Bagel for breakfast. The restaurant had a TV on. It was tuned to ESPN. It was about 9:00 a.m.

Nothing wrong here, right?

Until ESPN showed a commercial hawking some "Girls Gone Wild" or "Hot Spring Break Coeds" videos. My 6-year-old was staring at the screen, mouth half open, watching some drunk babe dancing erotically, raising her shirt (albeit with some parts strategically blocked out).

Enough is enough. When a guy can't take his daughters to get a Saturday morning bagel without having them exposed to garbage like this, enough is enough.

If Ashcroft and Powell want to shut this down, more power to them. If the program editors at ESPN want to act like randy teenagers, and if they lack a reasonable standard of decency, and if they feel the need to run advertisements like this at 9:00 a.m., well, maybe it's time they got some adult supervision.

Posted by: Rick The Lawyer at April 7, 2004 9:07 AM

Gotta agree with ya Justin. All the Justice dept is doing is enforcing laws on the books, something the Clintoon admin decided wasn't important (but harassing people through bogus justice and irs investigations was).

I have two teenage daughters, and they don't watch much tv at all (my rules) because smut is spewing on the airwaves. Ads on the SciFi channel for "tripping the rift", appear all day, and they are some of the foulest dirtiest commercials I've ever seen. I guess because its animated, it's ok. If the Justice Dept moves to get this out of our faces, I'm all for it.

Posted by: ilonazen at April 7, 2004 9:23 AM

Rick, you have it wrong. Your kids are supposed to be exposed to this stuff.
The veterans of the sexual revolution aren't going to be satisfied until everybody is utterly desensitized to such stuff.
Try asking, say, Jeff Jarvis why you shouldn't have to put up with this stuff.
Some of these folks won't be happy until every horse in the country has a nervous breakdown.
They aren't talking about letting a few do their own thing. They're talking about putting their things in your face.
Only then will the Republic be safe.

Posted by: Richard Aubrey at April 7, 2004 9:34 AM

Yes, let's get the government to infringe on the rights of adults to protect your children. My only question is : Where does the line get drawn, and who decides for me what I can and cannot see?

You want to have the freedom to bring your kids to a bagel place without subjecting them to a risque commercial, which is fine, until you decide that your right to that trumps MY right to choose what I watch. Call in the government, a six year old saw a drunk girl on TV!!

Won't SOMEONE please think of the CHILDREN??

Posted by: Pax Dickinson at April 7, 2004 9:40 AM

Pax Dickinson,

I think the phrasing of your question is wrong.

When does your right to watch whatever you want, whenever you want, trump my right to raise my kids in a respectable fashion? Do I need to keep my kids indoors until they are 18 so that you can watch smut while you eat your bagels?

Community standards in public. The networks have ignored them for years, and the reaction of the country to the Janet Jackson fiasco was the icing on the cake.

It seems you've decided that your right to watch what you want trumps MY right to raise my kids properly. Watch what you want, and when you want, but NOT in public. Go home and watch your smut.

TV (Harry)

Posted by: Inspector Callahan at April 7, 2004 10:07 AM

I hate to gloat, but what did I say?
Actually, gloating is pretty neat.
I said that guys like Pax want to put their things in your face.
So what did Pax do?
He insisted on his right to put his things in your face, and in your kids' faces.
Nice to be free of pious references to freedom of thought here.

Posted by: Richard Aubrey at April 7, 2004 10:35 AM

Thanks, Justin, for giving it right back to Reynolds, Sullivan (Andrew and Laura),, who seem to think that porn is not worth fighting against. I'm not sure I understand their real positions on it, but maybe Ashcroft's war on porn will force them to make their positions clear. The flap over Janet Jackson shows that people do care about basic decency. I think that porn is going to be a much bigger issue as it becomes more evident how it has destroyed families.

Posted by: schwartzshportz at April 7, 2004 10:48 AM

It's not that I want to put anything in anyone's face. I just want the right to watch what I want in my own home. What you have to realize is that people WANT to watch what you call smut. All I'm saying is that your right to raise your kids doesn't trump my right to my personal freedom. Change the channel or take your business elsewhere.

I say the market can decide. If people didn't watch, it wouldn't be on TV. If you want to pressure ESPN economically to not show those commercials during the day, I'd be fine with that. I might even support you. However, pressuring the government to make what ESPN shows ILLEGAL is FAR, FAR different.

You are free to not watch anything you choose not to watch. Government censorship is not the answer. The government passing laws about what we can and can't see is NOT a solution. Do you REALLY want the government making these decisions for everyone? What happens when the government has this power and suppresses something you WANT to see? Any amount of government censorship sets a dangerous precedent. I'd think you'd want your kids to grow up in a FREE country.

Posted by: Pax Dickinson at April 7, 2004 10:56 AM

Dump a president purely because of porno policy? In wartime!? That would be crazy, but there's such a thing as a last straw. Bush 2000 voters who expected limited government have a lot of reasons to be exasperated.

Posted by: gt at April 7, 2004 11:02 AM

Pax, you changed your point, having seen how it looks to normal people.
The question was kids at a bagel shop, not your own home.
Got that?
You think you got the switcheroo past the rest of us?
You wanted the kids at the bagel shop to be exposed to whatever comes on the tube. Now, it's possible the bagel shop owner could be induced by market forces to find a different channel, if there is one which doesn't offer the chance of such an ad.
On the other hand, nobody's keeping you from buying the stuff in the privacy of your own home.
Yeah, and if we can't bugger goats in the city park at high noon, not to mention in the school playground at recess, the Republic is doomed.
How come porn gets all the ink?
Got to be something here besides a dispassionate concern for the First Amendment.

Posted by: Richard Aubrey at April 7, 2004 11:07 AM

Pax, you would be happier over at Jeff Jarvis's thread.

Over there, the call is for Anyone Can Broadcast Anything Anytime And If You Don't Like Your Kids To Have Smut With Their Bagels There Is Something Wrong With You.

With respect to the posters here who have noted that there is nothing unreasonable with expecting some decency, thanks. There is hope yet. Not much, but some.

Posted by: Rick The Lawyer at April 7, 2004 11:14 AM


You write:

All I'm saying is that your right to raise your kids doesn't trump my right to my personal freedom. Change the channel or take your business elsewhere.

It's interesting that you're willing to insist that others buy their bagels elsewhere or find a way to watch sports somewhere other than ESPN on the basis that you ought to be free to watch porn. Since yours is the active behavior, when it comes to sexual content, why shouldn't you be the one inconvenienced? (N.B., this is not to say that I buy the argument that individual desires ought always to trump social definition.)

More to the specifics of this post, however, is that the Justice Department isn't seeking to prosecute based on laws that it would like to exist, but on laws that already do exist. So we return to the question: why not campaign for legislation that lifts all barriers to the dissemination of porn?

I've actually been surprised at the degree of expressed agreement with me in this thread. Perhaps the "dangerous precedent" argument is starting to wear as thin as the clothing in so much of mainstream entertainment.

Posted by: Justin Katz at April 7, 2004 11:19 AM

No, there's no switcheroo here. My point is, and always has been, keep the damn government OUT of my media. I don't WANT kids exposed to anything, frankly I don't care what you choose to expose or not expose your kids to. I just don't want some random kid's parent deciding what I can or can't watch because there's a chance kids might see it.

Re-read my original (admittedly sarcastic) post, I'm talking about GOVERNMENT CENSORSHIP. I don't WANT it, the country doesn't NEED it. Any amount of government censorship means that a line is drawn between the acceptable and the unacceptable. Who decides where that line is drawn? Powell? Ashcroft? You want to give that power to the government? What happens if Hillary Clinton gets elected President? Do you want HER deciding which of YOUR shows are politically acceptable? It's a very slippery slope that you're playing with our freedom on..

Posted by: Pax Dickinson at April 7, 2004 11:25 AM

Who decides where that line is drawn?

Well, the people who vote for the legislators who keep porn illegal and who have granted a degree of power to the Attorney General to go after pornographers. The fact that the line can be drawn in the wrong place doesn't mean that no line should be drawn at all. And (to jumble clichés) most of the people with whom you disagree are arguing that we ought to climb back up the slippery slope that we're already on, and I don't know that it's possible to honestly argue that we're not a long, long way from the top and, therefore, from sliding down the other side.

Posted by: Justin Katz at April 7, 2004 11:35 AM

I think that porn is going to be a much bigger issue as it becomes more evident how it has destroyed families.

And Asskroft claims that the "victims" of pr0n are "strewn from coast to coast."

Funny, but I have yet to see corpses piling up in the streets due to beaver shots.

Pr0n doesn't destroy people. People destroy themselves. Why should my rights as an adult to view or read anything I like be infringed upon because some people can't control their own lives...or keep tabs on their children?

Toren Smith was right: "it's for the children" needs to go right up there with "you're a Nazi" as out of bounds according to Godwin's Law.

...nobody's keeping you from buying the stuff in the privacy of your own home.

Yet. Sullivan's article is pretty indicative of Asskroft and Bruce Taylor's larger ambitions, which seem to be to bankrupt anybody who sells, distributes, or offers sexually explicit fare.

Pax, you would be happier over at Jeff Jarvis's thread.

Oh, I see, Rick...debate isn't allowed here. Thanks for letting me know.

...the people who vote for the legislators who keep porn illegal and who have granted the Attorney General a degree of power to go after pornographers.

Justin, I didn't vote for such legislators. Neither did millions of other people.

If they don't want pr0n in St. Charles County, Mo., well, I'm not really thrilled with that decision, but it doesn't anger me as much as it does their attempt to keep it off the 'Net, thereby affecting me and millions of other people who don't live in St. Charles County.

Posted by: Reginleif the Valkyrie at April 7, 2004 12:11 PM


You are, of course, welcome here. (As is everybody.)

You may not have voted for any of the relevant legislators, but... well... that's how we resolve differences in the public sphere. It's what our government is for. Millions against millions battling with votes.

Posted by: Justin Katz at April 7, 2004 12:22 PM

Pax: So, you seem to be suggesting that the content of all media (including broadcast, and publicly displayed media, which is what everyone else was actually talking about, not your ability to see it at home off the public airwaves) should be utterly un-regulated, because otherwise Hillary might force her views on people?

Last I checked, both Federal law and the totality of Supreme Court decisions required "censorship" (which is a word with an enlightening etymology you ought to take a look at. Surprisingly to many people, it is not simply a synonym for "BadStuff") to be content-neutral (in that specific views cannot be prohibited), so I'm not sure why we should worry about Hillary! taking control of the airwaves If We Let Them Prevent Us From Seeing Tits On TV.

Given that Government already has the power to regulate broadcast signals, I don't see why I have to want to "give" it that power to think that it's not necessarily bad to not see delicious, delicious smut every time I turn on the TV.

I like smut - but I don't see any problem with having to actively look for it to find it, rather than seeing it on, eg, ESPN during a commercial.

That's really, as near as I can tell, what everyone other than you seems to be suggesting would be an ideal state, and the counter-arguments aren't looking real strong at the moment.

The assumption that sexually explicit content cannot be worthy of regulation is just that... an assumption. You accept it. Others deny it. How about we look for some evidence rather than repeating dogma about how The State Can't Censor Anything Because Censoring Is Always Bad?

Posted by: Sigivald at April 7, 2004 12:23 PM

Pax Dickinson,

I think the way you need to look at it is thus: Are you "pulling" the smut into your house of your own accord, or is it being "pushed" into your house and daily life against your will?

Most reasonable people would not want to infringe on your right to watch porn or whatever. You can subscribe to whatever magazines you like and have them delivered to your house. You can visit your local adult video store and take whatever you like home with you. You can order, and pay for, MTV, HBO, Cinemax and whatever other "adult" channels you like. Those are all choices you can personally make. However, I think what most people are fed up with is the fact that it is being "pushed" to such an extent that you cannot watch ESPN at 9:00 AM without seeing the Girls Gone Wild ads. You can't watch the Super Bowl with your five year old son any more. I was watching TV just the other night at 8:00 PM, and the first scene was of some girl being raped in her bedroom at gunpoint. It was the very first scene of Prime Time - even before they announced what the hell show it was. This was not more than 30 seconds after Jeopardy. Ended. My five year old loves Jeopardy. Charming.

If you'd like to "pull" adult material into your home by ordering it, no problemo. If it's being "pushed" into mine, I've got a problem.

Posted by: Tim Darcy at April 7, 2004 12:55 PM

That quote from the email that Reynolds posted says it all about much of modern America - the guy thinks his access to porn is more important than all the other issues that go into deciding who would be the better President. Although the fact that he was 'looking for reasons to support his reelection' seems to indicate he wasn't very enthusiastic about Bush in the first place.
Even if you think porn is perfectly harmless (and it's not, even for adults), it's still just entertainment, right? So basically the guy is saying that his personal entertainment is the lodestar of his politics. It's no wonder that bin Laden et al. think (thought?) America is weak...

Posted by: Mike S. at April 7, 2004 12:55 PM

I'm not a big fan of censorship, but seeing a Girls Gone Wild commercial on ESPN at 0900 doesn't warrant full blown governmental intervention (this includes prosecution, you know jail time.) That seems like killing a fly with a canon, or even killing your ten year old because he shoplifted (can't have kids shoplifting, ya know.) I'm also hard pressed to beleive that a 6 year old seeing a hazed out girls gone wild video will alter their life for the worse. I think you are being a little overdramatic.

Posted by: Tom Dyess at April 7, 2004 1:08 PM

Or even like banning "under God" in the pledge because you feel your child will suffer some psychiatric scars because you brought her up as an Athiest. Not having to follow the beliefs of one man (or group) is the reason a bunch of Englanders came over in the first place. That ideology is far more important than "porn is bad for the children." You know how many opressive laws were passed using (yes USING) children to further the cause of a special interest group?

Posted by: Tom Dyess at April 7, 2004 1:13 PM

Tom asserts that "seeing a Girls Gone Wild commercial...doesn't warrant full blown government intervention (this includes prosecution, you know jail time.)"

His words, not mine.

First, I never suggested that anyone "seeing a Girls Gone Wild commercial" should go to jail. I sure wouldn't want my daughter to go to jail because she looked at the TV.

Second, define "full blown government intervention." Is a reasonable time, place, and manner regulation a "full blown government intervention?" If "yes," then we have had "full blown government intervention" of a lot of different kinds of speech for a long time now.

Third, please state each and every step in your reasoning process that leads you to conclude that basic decency regulation would necessarily result in jail time (as opposed to loss of a broadcast license, a fine, etc.)

Posted by: Rick The Lawyer at April 7, 2004 1:28 PM


I don't imagine ESPN's program manager is high on Ashcroft's list. The tendrils of the stuff that pervade mainstream media are indicative, however, of the mainstreaming of the harder stuff on which investigations will focus.

You've introduced a strange coalescence of views that ought to conflict. On the one hand, the First Amendment (et al.) is argued to extend to porn because of the slippery slope to more critical language. On the other, you seem to deny any progression from hazed out, sexualized commercials on from there.

There's obviously a balance to be struck, but the point is that any given anecdote is just a representative of the broader assault over time. That commercial wasn't a fluke in that six-year-old's life.

Regarding your second comment, the freedom that you leave out is the freedom to determine the type of society in which we live. That's why we have a say in the processes of our government, and if our freedoms don't extend to making consensus decisions about what our society is and how it comports itself, it's cheap fare, indeed. In essence, the hardline position that many take on the question of pornography — presuming an unregulated right to it as inalienable — is insisting that a specific worldview be the untouchable guide of the law.

Posted by: Justin Katz at April 7, 2004 1:28 PM

Publicly displayed media isn't what Ashcroft is talking about. He's talking internet, he's talking cable, he's talking satellite, he's talking about deciding what I have the right to watch in my own home.

From the Baltimore Sun article :

In a speech in 2002, Ashcroft made it clear that the Justice Department intends to try. He said pornography "invades our homes persistently though the mail, phone, VCR, cable TV and the Internet," and has "strewn its victims from coast to coast."

I think the real argument here is about what the ultimate goal is, where the line is to be drawn. Your goal might be to clean up the public airwaves, but Ashcroft's admitted goal is to completely eliminate all media content he personally doesn't approve of, whether public or private. That I have a problem with, and so should anyone else who cares about the First Amendment.

Posted by: Pax Dickinson at April 7, 2004 1:43 PM

The commercial on ESPN is really the heart of the issue. Several years back, I was watching Fox Sports presentation of a Dallas Cowboys football game. BAM! There was a commercial running promoting that night's airing of "That 70's Show."

What was the topic they were promoting? It was the star (whoever he is) dreaming about having sex with his mother complete with a shot of semi-nude mom - picture cut off just above the nipples. My initial reaction was "What the Hell?" And then they kept running the promo - again and again and again.

I tuned into Fox to watch Football. And was waylaid by an advertisement for incestial sex. Guess who was sitting right next to me. My son. If advertising has no effect on consumers, why does the NFL charge the networks Billions to carry their games, and why do networks charge advertisers Billions to advertise on those games? What effect did the advertisement have on my son? I don't know. But arrogantly asserting it has no potential effect is intellectually dishonest.

I invited Fox into my home for football, and was assaulted along with my children with images of incest. Market pressure be damned. This is bait and switch false advertising. I own a vote for a reason. And Ashcroft damn well better put a stop to this crap if he wants my vote.

Posted by: Scott Harris at April 7, 2004 2:03 PM


But those are pretty open media. The television in the bagel shop (to keep with that example) was tuned to ESPN. At worst, it's determining through what medium you can watch whatever you want in your own home. In my opinion, the prosecutions could certainly go too far, but that's true of any action. Moreover, what we're discussing now is putting the brakes on a steamroller headed in the other direction.

And again: Ashcroft isn't prosecuting crimes that he has no power to prosecute (nor is he the final arbiter of which cases lead to conviction). I'll agree with you that lines can be drawn too broadly — on the extent of the pictured behavior, on the allowable media, on the allowable venues — but we're nowhere near mine.

Where are yours?

Posted by: Justin Katz at April 7, 2004 2:08 PM

It's not so much where the line is drawn, but WHO gets to decide? I'd rather see a line drawn by economic and social pressures rather than by government fiat. If people are bothered by something, they're free to not contribute to its spread economically. If Rick's bagel shop shows content he doesn't like, he's free to patronize another shop that shows content acceptable to him. Another person who has a different viewpoint might enjoy some hardcore porn with their morning bagel. Who decides which preference is "correct"? I'm simply not a fan of solving social problems with government action, I believe it causes more harm than good.

I think the current level of "raciness" in the media is what America (as a whole) accepts and supports with their viewership and money. If people didn't watch it, there'd be no need to ban it, the media are in business to make money. They produce what sells. If you don't like the current level of "obscenity" in the media, it seems to me your issue isn't with the media themselves, but with we, the people, their customers. Banning some content won't reduce the demand for said content.

I realize that Ashcroft has the power to prosecute these "crimes", but I doubt that any such prosecutions will survive a challenge of their constitutionality. Politically, this is a HUGE mistake for the Bush administration, but that's really another discussion entirely.

Posted by: Pax Dickinson at April 7, 2004 3:18 PM

I'd rather see a line drawn by economic and social pressures rather than by government fiat.
— For the most part, I agree with this statement, although I would insist on acknowledging that economic and social pressures are related to each other and to government. Once again, the government isn't going to go after the bagel shop showing ESPN, but by prosecuting according to legal standards, it does help to shape the economic and social equations.

If people are bothered by something, they're free to not contribute to its spread economically.
— But the point is that, after a decade of unenforced laws, the problem is so pervasive as to defy the "don't buy it" strategy. Moreover, it's the pushing-out of the content, to lower standards and hook more viewers, that is objectionable. Once again, the question turns around to you: why shouldn't the deliberate effort be required of those who do wish to contribute to its spread economically?

If Rick's bagel shop shows content he doesn't like, he's free to patronize another shop that shows content acceptable to him.
— First, the bagel shop is just emblematic. Should Scott patronize another living room? Second, you're treating the matter as if the bagel shop is an active participant, when all it probably wanted was to show a sports broadcast. If it wanted to show explicit material, I imagine regulations would kick in, requiring an age minimum for patrons, for example. At the very least, one would expect the bagel shop to be required to put up signs and to warn patrons that it caters to the disgusting losers who desire hardcore porn with breakfast. The problem is that the content isn't being handled in accordance with what it is.

I think the current level of "raciness" in the media is what America (as a whole) accepts and supports with their viewership and money.
— I disagree, which is why I think more and more people are willing to attribute less weight to the "dangerous precedent" argument. I also don't believe that the media is acting strictly in accordance with market demand. For one thing, an industry can create demand, so for example, if it's cheaper to make programs full of sex than to hire talented writers, the entertainment industry might push the market in that direction through desensitization and marketing assaults. And on top of it all, I think you underestimate the pernicious nature of porn.

Banning some content won't reduce the demand for said content.
— That's simply not true. There's some vagueness in determining what we consider "demand." However, I think it's a pretty basic economic principle that the "cost" (in time or in money) of something will affect demand. Cost goes down; demand goes up. Make chocolate cake free, and more people will want it. The harder something is to get, the more one must desire it to make the effort, and it is a legitimate social decision (read: through the government, since that's our common ground as a nation) how hard something should be to acquire. It is legitimate to decline to have chocolate cake delivered to your kitchen "just in case you want it." And if an industry begins slipping chocolate cakes along with other goods, the public has a legitimate complaint.

Posted by: Justin Katz at April 7, 2004 3:51 PM


I understand your last argument because it is logical. However, it doesn't pull weight.

Most businesses do care what their customers want. The entertainment industry (as a whole) is not one of those businesses. Example: Hollywood puts out mostly crap in movies nowadays. The fact that the Christian right boycotts Hollywood does nothing to make Hollywood change its course.

Mel Gibson had a hell of a time getting his movie produced, but when it hit, it was a smash. But I don't think the big production houses are going to capitalize on that. Why? It doesn't interest them politically. Look at "My Big Fat Greek Wedding". Old-fashioned movie, was near the top of the charts for a long time. Why doesn't Hollywood make more movies like that?

The point is this - if the people at the top make "enough" money - ie the producers, actors, directors, etc., it won't matter what the customers want. They'll put out the same drivel they've been putting out for years. And barring some major shift in the market, that won't change.

What if it could be argued that if there were more family-friendly fare out there, that Hollywood would make more money? There are people suggesting just that. Do I think that if Hollywood knew this, they'd do just that? No, I don't.


TV (Harry)

Posted by: Inspector Callahan at April 7, 2004 3:59 PM

You said it Pax!

Oh my god, boobies!!! yeah, girls have probably never seen those before!

I am so over sex being evil!

No wonder girls feel compelled to show their boobs to lecherous drunks.

They have no better judgement.

Kinda like the Preachers daughters being the biggest sluts, don't cha think?

Posted by: Greg at April 7, 2004 3:59 PM

With respect to Pax's comment that I could always patronize another bagel shop:

Yes, I could, and I will. I dislike the thought of doing it, because it is a great little shop.

But I shouldn't have to run a recon in front of my kids every time we go out in public. I should be able to rely on the fact that whatever people watch and do in private, some reasonable standard of decorum will be maintained in public.

I.e., I shouldn't have to run ahead and check out what the TV's are playing before I take my kids into Best Buy.

I shouldn't have to go into Buffalo's while my kids wait in the car until I can determine whether the TV's are playing risque material.

And I should be able to take my girls out for breakfast without having to case the restaurant first.

And you know what, Pax? Life As You Know It won't come crashing to an end, even if you do have to wait until you get home to see your kind of programming.

Posted by: Rick The Lawyer at April 7, 2004 4:14 PM

Who are you protecting?

You or your daughters?

I remember as a young kid being curious about sex. Just because my parents wanted to protect me from it doesn't mean I didn't seek it out in school, conversations, porn, etc.

Better to know right from wrong. Better to know that I can leave or look away or take my money elsewhere.

For example, the media harps on the body count in Iraq in order to make America pull out, which makes use look weak, which encourages the terrorists. Sooooooo, I no longer watch the news.

Mostly internet, mostly blogs.

Freedom to choose.

Posted by: Greg at April 7, 2004 4:20 PM

You make some interesting points, and this has been a very interesting discussion. I think we both agree that governmental intrusion in media is not good, but you see the problem of "filth" in the media as being worse than governmental intrusion.

To me, the economic and social pressures work, since I have no real problem with the current atmosphere in our media. You, on the other hand, do have a problem with it, so you see economic pressure as being ineffective. It's all in where you're standing.

There is a point on the scale that reflects America's preference between the two extremes of either allowing hardcore porn over the air for free (anything goes) and limiting broadcasts to completely inoffensive Ozzie and Harriet style shows. The dispute is over where that point lies. You seem to believe that the media is pushing us in the anything goes direction against most American's will. I believe that the media is just giving people what they want, as indicated by ratings.

I have no problem with people choosing not to consume chocolate cake. I have no problem with people not wanting chocolate cake to enter their homes. I have no problem with people arguing to others that they should not eat chocolate cake. I do, however, have a problem with people saying that *I* should not be allowed to consume chocolate cake, and trying to pass laws against my chocolate cake consumption, no matter how harmful they believe the "pernicious nature" of the chocolate cake will be to me.

In short, I'm willing to allow behavior that I don't agree with for the sake of my own freedom to engage in behavior others don't agree with. I'd need to see real proof of real social harm before I'd be in favor of using legal remedies to prevent any such behavior, and I would have to believe that the social harm was so great that it outweighed any possible harm CAUSED by the legal remedies. The threat to freedom of speech by government intervention in media is so great in my opinion that it outweighs any social threat posed by drunk girls taking their tops off on TV. I'm against the so-called "War on Drugs" for the same reason : the cure is worse than the disease.

Posted by: Pax Dickinson at April 7, 2004 4:43 PM


It seems to me if you have such a problem with the programming shown in these public places you are out of tune with the vast majority of Americans who have no problem with it. Your "reasonable standard of decorum" differs from most Americans, rightly or not. I'm not saying you're wrong, I'm not saying you're right, I'm just saying your standards are not shared by everyone.

Government intrusion into what can be broadcasted is no solution at all, and will have a chilling effect on free discourse in our society. I empathize with your desire to protect your daughters from us disgusting perverts, but you know what, Rick? Life As You Know It won't come crashing to an end, even if your daughters do catch a fleeting glimpse of some drunk slut on TV. Consider it part of the price of living in a free country.

Posted by: Pax Dickinson at April 7, 2004 4:55 PM


A great majority of Americans are offended by the smut being pushed in their homes. Unless you have some valid statistics on this information, it is your opinion based on your experiences with your circle of acquaintances.

There is many studies that indicate that constant pornographic images are harmful to children (and I won't even go into the affect on adults), so it's not a 'crying wolf' scenario.

there are many parents who feel like Rick the Lawyer (I am one as well). I don't care if you invite porn into your house, but I don't like it being pushed into mine (i.e. every commercial break for Stargate SG-1 on SciFI, which starts at 5 pm cst).

Posted by: ilonazen at April 7, 2004 5:23 PM

A great majority of Americans are offended?

As I recall a recent porno prosecution in Ashcroft's home state couldn't get a conviction from a jury. Ya gotta wonder why?

There is as much $$$ spent on commercial Hollywood videos as is spent on porn videos. Some body is watching that stuff. Do you suppose any of them will be on the jury?

My answer to the smut on TV problem? Don't watch. Don't go where others watch.

And if thine eye still offends thee? Pluck it out.

Posted by: M. Simon at April 7, 2004 6:02 PM

By going after all kinds of smut in every venue Ashcroft may be destroying his own campaign. He is a very clever Attorney General.

Video tapes? Don't you have to buy or rent them? Pay per view? etc. If he just stuck to over the air TV he might have gotten some traction.

Janet Reno got results from a targeted campaign and no opposition. Ashcroft's campaign is not designed for any results other than headlines.

It would be truly pathetic if so many weren't falling for it.


As for smut being pushed into the home? You must be a liberal who needs the government to show you where the power switch is on your own TV. My condolences.

BTW there is this really neat new invention that might solve your problem. I mentioned it earlier but perhaps you haven't heard of it. It is called the video tape. You buy or rent these things called tapes and you can actually preview what your kids watch before you let them watch it. I hear that the tape machines are not too expensive especially if you already have a TV. I'm also told there is a rating system than can advise on the general nature of the content of a tape. You might want to look into it.

Of course if you can't find out how to turn off your set hooking up a tape machine is probably beyond your competence. I'd call in professional help in that case.

Posted by: M. Simon at April 7, 2004 6:47 PM

Just three final comments here.

First, thank you for what has been a remarkably civil and constructive thread.

Second, judging by the Janet Jackson fiasco, I don't think I am in the minority in calling for some measure of decency in what is shown over the public airwaves, in places open to the public, or both.

Third, I wish ESPN's programming editors were grown-ups. I wish that people who were responsible for programming would realize that just because something CAN be shown, legally, doesn't mean it SHOULD be shown. I wish people would exercise sound judgment and decency because they are good and right things in a civilization.

This is a real problem affecting real people. I am open to constructive suggestions, as you are, and as the President is. Unfortunately, I don't think we are going to willingly halt our race to the bottom.


Posted by: Rick The Lawyer at April 7, 2004 6:50 PM

M. Simon,

Anything that Ashcroft might have done — short of doing nothing, and perhaps even then — would have gotten just about the same headlines. Frankly, I don't trust the coverage. For one thing, Ms. Sullivan goes back to an Ashcroft speech to prosecutors from 2002 to get some sort of quotation about the extent of the effort.

Note also how the much additional quote-time the pornographers get and how the quotations about what the current Justice Dept. team is after are cut & paraphrase style.

Posted by: Justin Katz at April 7, 2004 7:05 PM

You got to wonder about Republicans. They get to talk about and effectively promote smut (the Starr Report?) while pretending to fight it. I heard more talk about BJs and semen at work than I ever had before. It was on the tip of every tounge (if you will pardon the expression).

I suppose if you keep the kids from watching the news you might be safe. Maybe.

The Democrats at least prefer don't ask, don't tell. A modicum of discression. The Republicans want smut on the front pages.


Way cool.

Posted by: M. Simon at April 7, 2004 7:07 PM

It seems rather simple to me. If you don't want kids to observe sex keep them out of the barnyard and don't keep pets.

Don't want sex intruding in your home? The Amish have it down. Don't own a TV.

Ladies and gentlemen. If you are incapable of protecting yourselves from a television how do you expect to be trusted with guns?

This is a bunch of whining no better than what I hear from liberals. The objects of the whine are different but the whine is the same: "I need a government program...."

Next time a liberal asks for a government program instead of complaining you ought to do some log rolling.

I got it. You guys work on sex speech and the libs can do hate speech. I'm sure you can work something out.

Posted by: M. Simon at April 7, 2004 7:19 PM

Is this a war on porn, or a war on art?

Posted by: Jon Rowe, Esq. at April 7, 2004 8:06 PM

Is this a war on porn, or a war on art?

Posted by: Jon Rowe, Esq. at April 7, 2004 8:07 PM

"if the public really is as enamored of smut as Ashcroft's critics believe, why not campaign to change the law?"

for the same reason that there are laws against smoking marijuana, underage drinking, smoking, guns, etc..

The lawmakers do not always reflect the desires of the public. In fact, they usually represent a small group with some special interest. They push the lawmakers to institute some law that the vast majority of people are indifferent to.

Isn't this the same Ashcroft that had a statue covered because it portrayed a bare breast?

Posted by: Earl at April 7, 2004 8:07 PM

Here is Robert Bork lamenting the Miller test, how it makes it too hard to prosecute porn:

The first two prongs of the test become increasingly difficult to satisfy as contemporary community standards decline and as fewer and fewer descriptions of sexual conduct are regarded as patently offensive. But it is the third part that poses the most difficulty. There is apparently nothing that a flummery of professors will not testify has “serious value.” When Cincinnati prosecuted the museum that displayed Mapplethorpe’s photographs, the jury deferred to defense witnesses who said the pictures were art and hence could not be obscene.

Slouching Towards Gomorrah, p. 146.

In fact, I remember reading something by William F. Buckley where he stated that he went to that museum in Cincinnati to see the Mapplethorpe photos and judge for himself what the controversy was all about. He—like most people—found the photographs to range from highly distasteful to downright disgusting. But Buckley was taken aback by the museum curator who presented Mapplethorpe’s work; the curator marveled at the artistic talent—indeed, the genius—displayed in the photographs, how they brilliantly exemplified classical line and form…

I think the bottom line is that Mapplethorpe indeed was a very talented photographer. But he used his talents to venture into areas that most find highly objectionable. But that hardly disqualifies his work from being serious art.

And some hard core pornography—triple X rated movies and the like—may similarly qualify as highly artistic. Here is Camille Paglia on the subject:

My point in Sexual Personae is that one cannot make any kind of firm line between high art and pornography. In fact, porn permeates the high art tradition. Even Michelangelo’s Pieta, the supreme artifact of the Vatican, is a work of pornography—when you look at it up close.

Vamps & Tramps, p. 123.

Later on in the book while discussing footage from the 1979 porn classic Debbie Does Dallas (I'll forego the link), Paglia states, “Pornography and art are identical for me, absolutely.” p. 279. And “Michelangelo is a pornographer…and the Pope is a collector of porn.” Id.

If the First Amendment ought to be interpreted as protecting artistic freedom, then we may rightly conclude that much, perhaps most, perhaps even all pornography is protected.

Posted by: Jon Rowe, Esq. at April 7, 2004 8:45 PM


Thanks for making a cogent and worthwhile point. Part of what we're seeing, it seems to me, is the folding together of various detrimental trends:

  • The deterioration of the arts, erasing such distinctions as honed craft and larger import
  • The corrosion of public morality, leading to a reluctance to make judgments that aren't starkly drawn, all-or-nothing affairs
  • The expansion of government and the distortion of the laws that are supposed to define it, making matters difficult that ought to be more easily resolved

Here's the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.

I see nothing there about artistic freedom; "speech" is protected, not "expression." If speech were meant to be interpreted so broadly, why add specific mention of the press? I do believe there ought to be a high presumption of freedom to the arts; I also believe certain forms of artistic expression ought to be protected as "speech."

However, I also see nothing in the First Amendment restricting anybody except Congress (i.e., not the states) from making such laws. That came later, of course, but if the Fourteenth Amendment is going to give smut-related due process rights to Larry Flynt (as I believe was the case), and if the federal government is going to define a level of obscenity above a certain level that is absolutely protected, then people have fewer options regarding matters that they refuse to tolerate, and the government is obligated to police obscenity below that level.

Intellectuals get a kick out of asserting definitions of "pornography" that don't accord with public understanding and extending the difficult cases to cover the obvious. They also get a kick out of twisting the law as if it, too, were a malleably interpretable work of art. Meanwhile, assertions of religion are forcibly pushed further from public acknowledgment and debate, and attempts at developing stigma are undermined through the prioritization (and sometimes legislation) of ideals of "diversity" and "tolerance."

Those who support the efforts of a malajusted photographer are going to have to understand that this situation is untenable. Either the too-careful parsing of the First Amendment is or the restraints on assertion of personal morality are going to have to explode. If you want to conclude that "perhaps even all pornography is protected" by current law, be prepared for drastic changes in that law, which will surely reach far beyond just the lowlife scumbags selling cheap videos of wayward men and women.

Posted by: Justin Katz at April 7, 2004 9:18 PM

You are, of course, welcome here. (As is everybody.

Thanks, Justin. This overall has indeed been a civilized thread.

I'm glad others have brought up the analogy of guns, which I thought of while driving to work today. What I wrote above — "porn doesn't destroy people, people destroy themselves" — mirrors the "guns don't kill people" argument perfectly. And remember that the gun-grabbers use the odious "think of the children" argument as much as the smut-grabbers do. (And they're not the only ones on the left guilty of that tactic. Remember that old hippie bumper sticker, "War is bad for children and other growing things"?)

Let me be clear that I don't hate children per se, although I don't wish to have any of my own. What I hate is the way many adults on both the left and the right use "the children" as an excuse for any and every sort of legislation that will raid my wallet and vitiate my civil liberties. And I hate the modern belief that everything in this world must be "kid-friendly." Las Vegas tried an advertising campaign to that effect for a while, you may remember. You can judge its effectiveness by their reversion to the "adult-playground" theme in their more recent tourism ads.

Rick (when you next get online and read this thread), have you considered saying something to the bagel shop owner? While this won't solve all your problems with what you perceive as "indecency" in the mass media, you could make the owner aware that his (likely it's a "he") choice of ESPN on the TV will affect whether you return to his shop or not. Whether he'll see things your way or not, I can't predict.

Note on Mapplethorpe: I didn't see the paintings when they hit Boston, but I did see them a number of years later in a coffee-table book. Leaving the content aside, I wasn't all that impressed — the slick-glossy-magazine school of photography has always left me somewhat cold; to me, it's the small imperfections that lend beauty to a work of art. And Mapplethorpe, IMHO, didn't have half the talent that makes Herb Ritts's work interesting to me even if it's not my favorite genre.

Posted by: Reginleif the Valkyrie at April 7, 2004 10:14 PM


Guns don't seem quite an adequate comparison. There's an addictive quality to porn that guns lack. The former is also more passive, and the danger is in looking, not usage.

Regarding activists on other side, one can see the traces of this inherent distinction between the two issues. Gun-grabbers worry about other people's children; I can't have a gun for the sake of my own children, according to someone else. Most of the comments that I've seen in reaction to the issue at hand, in contrast, are from parents wishing to protect their own children to external influence that is becoming increasingly difficult to beat back.

You might think that's a distinction without a difference, but at the very least, perhaps you'll allow that it indicates a qualitative difference in sincerity.

Posted by: Justin Katz at April 7, 2004 11:25 PM

I just want to say this is a great thread that brought up many good points.

I think one of the points of the article that hasn't been discussed is the fact that Ashcroft and the DOJ are spending time and effort trying to enforce an existing law that many people find unjust. And they believe the DOJ could be spending that time and effort doing something else.

As with any administration, each has its own focus. As a result, some existing laws will get enforced while others won't. And if they feel particularly strong about a certain issue (such as gay marriages), they might decide to pass legislation for it. For Ashcroft, it's clear that morality is something that is important to him, and he has people in the DOJ cracking down on porn.

So is it wrong for people who feel that by doing so, the government is less focused on matters that are more important to them? That's what elections are for. I think in this particular case, many people are mad about it.

For me, it just seems odd that my tax dollars are paying Mr. Nguyen and friends to watch and log porn all day, and seek psychological treatment for it afterwards. If I had control over where my money went, this wouldn't be it.

As for ESPN, it is a paid cable channel. The government should have say over what gets broadcasted over the airwaves to the public (like the Superbowl), but once it's paid, subscribed content, who's to say the government should decide what people should be allowed to watch?

Posted by: Johnny at April 8, 2004 12:03 AM

You realize that if you get your wish porn will have to turn biblical to pass muster (socially redeeming value).

"Lot's Daughters". "Don't Marry Foreign Donkey Dicks". "David and the Concubines". "Abraham's Wives". "Stoned for Adultry". "I was King David's Sex Slave". "Uriah's Wife". etc.

And of course once you start prosecuting these cases kids will get more interested in the Bible. Not necessisarily in the sections you had hoped.

My advice: If thine eye offend thee pluck it out. I believe that is Biblical too and will permanently solve the problem. Of course we will need laws allowing the moral to blind their own children but it would be a small sacrifice to prevent the transmission of corruption.

Ascroft was right to drape naked justice. Think of what seeing that could do to poor innocent children.

You know all this sex hysteria comes about because we are separated from the source of our food. The barn yard. In the past it was much harder to separate kids from the facts of life.

Posted by: M. Simon at April 10, 2004 12:43 PM


This is like campaign finance "reform". There will be unintended consequences re: free speech.

Then there is the internet.

How we gonna enforce American laws on the Dutch? Or in places where the age of consent is 14?

BTW how do you plan to handle breast feeding?

What ever happened to the good old Republican idea of personal responsibility. i.e. only do business with people whose judgement you trust.

What happens when the men with guns (government) that you have asked to solve your personal problems turn their guns on you?

What happens when Howard Stern starts reading and commenting on the "good parts" of the Bible? It would be a real yuck fest to see Ashcroft & Co. banning Bible reading on the radio or TV.

And just think that because all this is political the lefty anti-violence folks (you know violence is addictive and as the tolerance goes up ever more is required) ask for a quid pro quo.

You see once we breech the Constitutional "no law" barrier there is no end of good we can do. We can end hate speech, sex speech, violence speech, hurtful speech, etc. etc. etc. Think of how much better off we will be when all this bad speech is banned. We can finnaly put an end to sex pornography, war pornography, violence pornography, hate pornography, gun pornography, etc. etc. etc.

This will be better than the New Soviet Man. We will have the New Free Man. Free of all things evil. Won't that be good? We will finally be able to compete with Islam on an equal basis.

Posted by: M. Simon at April 10, 2004 1:14 PM


Your fundamental mistake is to think that the laws will be enforced only to your satisfaction.

There are peole who consider "gun love" pornographic. What makes you think they will not get their say and influence? You have already alluded to that. You call their definitions false. Which may be true but it doesn't matter once you give them political power by breaching the "no law" barrier.

You will not be in charge of defining pornography. Some government agent you have no control over will be in charge. Which is why all this is so dangerous. Which is why making a Federal case out of your personal problems is not ever very wise.

Once you allow regulation of speech (just like regulation of guns) government will want more and more powers. The end result is that you will not stop the flow of pornography but you will put a big damper on free speech.

Ah. Well. There is never any holding back the people who want to help us at gun point. The left and right each have their own causes where they cannot get voluntary compliance and need violence and the threat of violence to get their way.

The sickness is in thinking the guns of the state can get you the world you want. It is a sickness of the left and the right. As long as the left and the right are in cahoots to avoid looking at the real nature of government (goverrnment is violence) liberty lovers in the land of the free are going to have a hard time.

What ever happened to Democracy, Whiskey, Sexy? Did that Iraqi individual understand Liberty better than we do?

Posted by: M. Simon at April 10, 2004 1:34 PM

your vote noneltheless matters and it would be a mistake to think differently

Posted by: business plan at May 12, 2004 3:58 PM

Personally, I don't think the Girls Gone Wild commercials are that risque. And I think that a lot of people seem to think that it's their constitutional right to be able to watch TV without being offended. Heck, I get offended watching Ashcroft say anything, but I'm not trying to get him off the air. And I don't want my kids to see him prancing around either. But if I want to watch the news, sometimes I'm going to have to bite the bullet and I'm going to have to explain to my kids that sometimes adults can be very silly.

Posted by: Jeff at August 19, 2004 9:31 PM

well rick& justin you both sound like family oriented people- my opinion to be quite frank is that if you are so you shall agree, isn't the point of going out with your family to be and spend time with your family? talk with them, keep them & yourself distracted with conversation- I know its not always easy and children have wandering eyes-i have one- but thats what families are for. live it up, this is life. these tings are going to happen no matter what and although you don't like seeing it don't go rushing into worry thinking you'll have to desperatly explain this away or your daughter will grow up wanting to be that way. It's human nature. if you don't like that then think about the discovery channel or tlc. think about dolls or health class where they will learn anyway. yes i know shes only 6- but honestly it's better to let your children experience everything and all kinds of life than to shelter them to a certain lifestyle-no matter how ritzy or risque it is. believe me on that. you may want your children to always be warm and fed, but isn't it ok to expose them to the homeless man nearby? they will be more educated, compassionate, etc., without becoming homeless in their adulthood. think of it that way.

Posted by: Daron Bryant at November 9, 2004 12:22 PM