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April 9, 2004

The Fly Distracts the Driver

Honestly, pornography is not high on my list of topical priorities. Nonetheless, believing my opinion to be correct, a sufficient challenge merits an escalation. Mark Kleiman provides such a challenge when he proclaims, "Using Eugene Volokh's mind to figure out why a crackdown on porn is a bad idea seems a little bit like using a howitzer to swat a fly." It's an interesting simile. Under most circumstances — against most flies — a howitzer probably wouldn't be a very effective tool.

Knowing Professor Volokh's intelligence to be difficult to overstate, I nonetheless see some hope for the fly. Here's the ostensibly unanswerable rhetorical with which Volokh ends the post in question (which Glenn Reynolds calls must-reading for the Justice Department):

I'm asking: How can the government's policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that's far, far beyond what the Justice Department is talking about right now.

Unfortunately, Volokh never explains what he's taking those "stated goals" to be. He opens with the acknowledgment that there is "porn of all varieties out there on the Internet," he talks of blocking "cyberporn," and his scare scenario — wherein married couples are lured to phony Web sites and thereafter jailed — is built around the Internet as the playing field. However, the article that caused the uproar yesterday characterized the "goals" thus:

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.

Department officials say they will send "ripples" through an industry that has proliferated on the Internet and grown into an estimated $10 billion-a-year colossus profiting Fortune 500 corporations such as Comcast, which offers hard-core movies on a pay-per-view channel.

Unless Volokh intends to argue that Comcast would substitute foreign suppliers for its porn needs, his entire analysis would seem to be founded on a false premise. In defending the latter party in Community Standards v. the Individual, Volokh presumes that the former's goal is the inverse of the latter's desire — that the crackdown's motivation is defined by a desire to limit the individual. In his entire post, the only mention of anybody besides porn creators and their determined customers is an unexplained reference to "the viewers' neighbors" toward the end of the post.

Individualizing the harm that the Justice Department seeks to prevent certainly would change the calculation. I would agree with Volokh, in fact, that an effort to actually prevent anybody from watching porn ever would require measures that are much too intrusive for whatever net gain in morality such an overly exuberant policy might seek to bolster. It is reassuring, therefore, that Justice Department anti-porn lawyer Bruce Taylor evinces a more measured, strategic objective:

Once it becomes obvious that this really is a federal felony instead of just a form of entertainment or investment, then legitimate companies, to stay legitimate, are going to have to distance themselves from it.

If that plays out as it likely would, there would be no need for Volokh's hypothetical future in which the government becomes "outraged by the 'foreign smut loophole.'" Any loophole would not open out onto the field of basic cable; it wouldn't enable commercials for the illegal products; it wouldn't erase the boundary for magazine content. In other words, the investments driving porn's mainstreaming would dry up. Moreover, accidental viewers, viewers who watch only when they come across it, and viewers who are only willing to make minimal effort to find it will drift out of the audience for porn.

Therefore, unless Volokh predicts the utter failure of the Justice Department's efforts — which he does not do — it would seem incorrect to declare as inevitable a future in which "U.S. consumers keep using exactly the same amount of porn as before." The only way that prediction could hold is if he limits the definition of "consumer" strictly to devoted users of Internet porn. Happily, for those folks, Volokh offers an argument that their individual freedoms wouldn't be objectionably limited:

And even if overall world production of porn somehow falls by 75%, which strikes me as nearly impossible, will that seriously affect the typical porn consumer's diet? Does it matter whether you have 100,000 porn titles (and live feeds) to choose from, or just 25,000?

So, parents and people desiring to avoid corrupting material will no longer face the forces pushing them toward isolation or capitulation. And, as Eugene Volokh argues, those who wish to acquire porn will not face negatory limits on their choices. Sounds like a win-win scenario to me.

Posted by Justin Katz at April 9, 2004 1:19 AM


Posted by: tjrgi at August 5, 2005 8:00 PM