Steve Sachs Duke


Sunday, May 02, 2004


Pornography and Prostitution, Part IV: It's an idea that's catching on -- Columbia Business School's Jonathan Knee, in his NYT op-ed today, suggests regulating pornography through conduct-focused laws:

The law of obscenity has not fundamentally changed since the Supreme Court in 1973 vaguely directed a jury to apply "contemporary community standards" in reaching a verdict. In the Internet era, the question of what community and what standards is even less clear. Amending the Constitution is impractical. The Justice Department's strategy of bringing test cases to clarify the meaning of obscenity is time-consuming and unpredictable.

What we need is a kind of regulation that does not implicate the First Amendment at all -- yet goes to the heart of the enterprises that fuel the multibillion-dollar pornography industry. The value of laws against prostitution is well established. 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.

I'd argue, though, that many existing prostitution laws already prohibit payment for sex acts, and could easily be enforced against the commercial manufacture of pornography. (See the earlier posts -- Part I, Part II, and Part III--in this series.) The Missouri statute is broadly drafted, and the legislature has already shown an interest in cracking down on smut. Why not try an alternative legal tactic? Maybe if someone in Gov. Holden's office took note...




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