1:48 PM :: Stephen (contact)

Pornography and Prostitution: It's a question for the ages, but I haven't been able to come up with an answer. Why is the commercial manufacture of pornography legal?

Consider the nature of the transaction. Person A (the director or producer) gives person B (actor/actress #1) a certain amount of money in exchange for engaging in sexual conduct with person C (actor/actress #2) in front of a camera. We have a name for transactions like that, and the name is "prostitution." Indeed, Missouri Revised Statutes chapter 567.010(3)(b) defines a person as "patronizing prostitution" if he "gives or agrees to give something of value to another person on an understanding that in return therefor that person or a third person will engage in sexual conduct with him or with another."

Patronizing prostitution is a class B misdemeanor in Missouri, and persistent offenders can be convicted of a class D felony. I'd imagine similar laws exist in almost every jurisdiction in the United States, except maybe Nevada. Moreover, under federal law (18 U.S.C. 2422), it is illegal to persuade any individual to travel in interstate commerce in order to engage in prostitution--punishable by up to 10 years in prison. So why has no enterprising family-values D.A. (or Attorney General John Ashcroft) sought to break up the porn industry by throwing all the pornographers in jail?

The answer can't be because of any First Amendment protection. At most, the freedom of expression would permit the sale or possession of the depiction of certain acts (though this does not extend to child pornography made with actual children); it does nothing to protect the underlying acts themselves. If it's illegal to pay someone to have sex, it's illegal to pay someone to have sex on film. Surely a person convicted of check fraud could not seek First Amendment protection for his actions because he had committed his crime on camera. (Nor could the murderers of Daniel Pearl claim as a defense that they had intended their abhorrent video for sale.) Thus, even if the sale or possession of pornography were protected by the Constitution, its manufacture would not be.

So how has pornography survived legal challenge? Given the Missouri law, I can see only a handful of ways that would-be pornographers could escape liability. First, they could operate solely within Nevada, or other jurisdictions with relaxed prostitution laws, and then sell their products nationwide.

Second, they could produce pornographic material through digital imaging, without involving the use of real actors. As the Supreme Court has ruled, such material receives full constitutional protection: "In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production."

Third, on Missouri's definition, prostitution only takes place when one person engages in sexual conduct with another. Explicit material which features only a single actor or actress would therefore be legal under the definition (albeit presumably less interesting to its consumers).

Fourth, the Missouri statute covers only the commercial manufacture of pornography. If an individual chose freely to engage in sexual conduct with a third party, and later chose to distribute the material for free over the Internet (which, to judge from the content of spam email, appears to be a surprisingly common practice), there could be no accusation of prostitution, although the third party would have a pretty good invasion-of-privacy claim. In fact, it may be permissible for the two to sell their video on the market and split the profits, so long as any "thing of value" is only promised in exchange for permission to distribute the video, not for the sexual acts themselves. Perhaps it would be possible for a group of individuals to form, say, a Porn Actors' Collective, in which the profits of distribution are shared. However, if the enterprise involves the ongoing production of material, rather than the mere distribution of recorded past acts, it may be possible for prosecutors to demonstrate an "understanding" that money would change hands. (Related note to those who know more about copyright law: who is the 'author' of a motion picture, where authorship has not been established by contract? Is it just the person behind the camera? Or the producer who fronts the money? Or all the participants jointly, including the actors, the sound technicians and the costume designers?) To be honest, I know virtually nothing of the corporate structure of pornography enterprises, but I wonder whether they have taken such concerns into account.

In any case, although I've seen some attention to this problem by others, I've never read a definitive explanation (and I'm somewhat hesitant to broaden my search). Any suggestions by those more well-versed in such issues would be welcome.

 

9:01 AM :: Stephen (contact)

An op-research field day, Part III: Prof. Mark Kleiman responds to the post below:

Sachs makes, I think, at least one plain error. He contrasts Clark's later critique of the haste with which the war was started with his earlier praise for the decision to move on Baghdad in March rather than waiting until more ground troops were in place. But those weren't at all the same decision.

It's perfectly consistent to say that the war could and should have been postponed until the fall, but that, having started it in the winter, it was wise to take the enemy capital quickly rather than slowly.

Here's the paragraph in full from the original op-ed:

Still, the immediate tasks at hand in Iraq cannot obscure the significance of the moment. The regime seems to have collapsed -the primary military objective and with that accomplished, the defence ministers and generals, soldiers and airmen should take pride. American and Brits, working together, produced a lean plan, using only about a third of the ground combat power of the Gulf War. If the alternative to attacking in March with the equivalent of four divisions was to wait until late April to attack with five, they certainly made the right call.

As I wrote in the initial post, it's perfectly possible that Clark meant it was the right decision only in terms of military preparedness. But the decision to invade in March was not up to the generals or even the defense ministers; it was made by the commander-in-chief, and involved vast diplomatic as well as military concerns. Given that Clark is elsewhere in the op-ed deeply concerned with the diplomatic ramifications of the war, I find it very odd that he would praise the decision to invade in March from a purely military perspective without indicating any potential diplomatic benefit to waiting (and building a larger coalition in the meantime). This is especially true given that Clark has subsequently spoken out against the administration's rush to war. Consider this March 19 exchange between Clark and a reporter for an Australian radio station:

RAFAEL EPSTEIN: General Clark is one of the few men to have led allied troops into battle since the Cold War. Operation Allied Force, the bombing campaign in Kosovo, went ahead despite a Russian veto in the United Nations Security Council. He says the timing of this war has been chosen by the US President.

WESLEY CLARK: This is purely elective. It's elective surgery, right now. But at some point we were going to have to deal with Saddam Hussein, and the simple truth is we could have waited a month or two, we could have waited if that had been able to produce the kind of diplomatic consensus we needed.

I wasn't on the inside of the diplomatic process, I'm sorry it looks like we're going ahead without the kind of strong diplomatic consensus that would make the war and this achromat easier. [sic--perhaps "its aftermath"?] But ultimately we were going to have to deal with Saddam Hussein; he's in a rough neighbourhood, he's got a bad track record.

I don't see any consistent thread that ties these views together. If we could have waited a month or two without any significant reduction in our military effectiveness, why was attacking in March the right call? Wouldn't the potential diplomatic gains far outweigh any costs in preparedness?

Kleiman also argues that Clark's praise of Bush and Blair reflects his strength of character:

Sachs also thinks it inconsistent for Clark to praise Bush and Blair for boldness and resolve, while criticizing the substance of their decision. He points out that Howard Dean, for example, would never praise Bush for his "resolve." That's right, of course. Dean wouldn't. But that suggests to me merely that Clark is more generous in spirit than Dean, or than the average politician.

Again, here's the full paragraph from the op-ed:

As for the political leaders themselves, President Bush and Tony Blair should be proud of their resolve in the face of so much doubt. And especially Mr Blair, who skilfully managed tough internal politics, an incredibly powerful and sometimes almost irrationally resolute ally, and concerns within Europe. Their opponents, those who questioned the necessity or wisdom of the operation, are temporarily silent, but probably unconvinced. And more tough questions remain to be answered.

Contrast this with what Clark said in the Oct. 9 Democratic Debate in Phoenix -- that the war in Iraq "was an unnecessary war, it was an elective war, and it's been a huge, strategic mistake for this country." This sentiment is entirely absent from the April op-ed, and I just don't buy the explanation from generosity of spirit. Not even Clark would accept this interpretation; in the same debate, he said that "I did praise George Bush and Tony Blair," but only "for sticking with the offensive in Iraq once it had begun." In other words, Clark claimed, he thought Bush and Blair showed resolve by not ending the military campaign halfway-through, once the bombs had already started falling. But this interpretation makes even less sense--there was no chance that the war would have been halted during the three weeks before Baghdad fell. And the "opponents" who created the "doubt" were questioning "the necessity or wisdom of the operation," not whether we should have stopped at Basra.

Remember, the overwhelming impression left by the November speech was that the war, however well conducted, was a huge mistake. Although Clark did indicate in the op-ed the need for a great deal of additional work before a peaceful and democratic Iraq would emerge, none of that hints at any reluctance regarding the decision to move against Iraq--this is an op-ed that could have just as easily been written by Joe Lieberman. Contrast this with a speech by another prominent critic of the war, Sen. Robert Byrd (D-W.Va.); while wholeheartedly supporting American troops, Byrd leaves no uncertainty regarding his opposition.

I don't mean to punish a presidential candidate for holding subtle views, or for speaking his mind in ways that don't lend themselves to sound-bites. Perhaps it's possible, if one starts with the assumption of Clark's consistency, to torture out a coherent meaning for his conflicting statements. But if we instead hold Clark to the same standard of clarity to which we would hold any other public figure, it looks like he's trying to take something back.


UPDATE: The other Steve Sachs endorses Clark.

 

10:16 AM :: Stephen (contact)

An op-research field day, Part II: A good deal has been made of Wesley Clark's April 10, 2003 op-ed in the Times of London. I've presented some excerpts below, paired with excerpts of a speech Clark gave on Nov. 6 in South Carolina. My version of the op-ed came from LEXIS; another copy of the full text (with slightly different paragraph breaks) can be found here (link thanks to InstaPundit). Text from the April op-ed is in bold.

I have always believed that before initiating military action, crucial tests must be met: For example, every diplomatic option should be explored and exhausted. We must do everything possible to gain international and domestic support. And there must be a realistic post-war plan.

The Bush Administration failed every one of these tests.

American and Brits, working together, produced a lean plan, using only about a third of the ground combat power of the Gulf War. If the alternative to attacking in March with the equivalent of four divisions was to wait until late April to attack with five, they certainly made the right call.

---

Finally, after training our forces on Iraq, the Administration essentially declared - we're going it alone. Instead of using diplomacy backed by force - as we did so effectively in the Balkans - this Administration's diplomacy was only a fig leaf. The United States was going to war no matter what. The Administration went to the UN with a "take it or leave it offer," which reflected a combination of indifference and disdain. It did not explore every diplomatic option; it did not do everything possible to bring allies with us.

As for the diplomacy, the best that can be said is that strong convictions often carry a high price. Despite the virtually tireless energy of their Foreign Offices, Britain and the US have probably never been so isolated in recent times.

---

Despite our overwhelming military might, our economic strength and the power of our democracy, we cannot win these battles alone. We can't pursue Arab-Israeli peace, **maintain stability in the Middle East,** support reconstruction of Iraq and Afghanistan, deal with the challenges of North Korea, track down Osama bin Laden, fight the global war against terrorism, face the problem of Iran, and return to prosperity in this country, unless we have allies to help us.

But the operation in Iraq will also serve as a launching pad for further diplomatic overtures, pressures and even military actions against others in the region who have supported terrorism and garnered weapons of mass destruction.

Don't look for stability as a Western goal. Governments in Syria and Iran will be put on notice -indeed, may have been already -that they are "next" if they fail to comply with Washington's concerns.

---

Our focus should have been on winning the war on terrorism - working with our allies to track down the terrorists themselves; to develop new initiatives in Pakistan and Saudi Arabia to rip out the roots of radical terror, stop radical schools indoctrinating a new generation of terrorists day after day. That's how you win the war on terrorism.
...
The Administration zeroed in on Iraq. But focusing on Iraq made no sense -- if the real goal was to protect the US either from weapons of mass destruction or terrorism. The hundred tons of loosely guarded nuclear bomb-making material and bioweapons in Russia presents a far more tempting target for terrorists. But this Administration has not made that a priority. The nuclear programs of Iran and North Korea were more advanced and more threatening than Iraq's, but for months they paid little attention. Their actions made no strategic sense; they downplayed the greater threats, and exaggerated the lesser one.
...
If I am elected President, I pledge to you that America will never, under my leadership, choose to isolate itself without allies, in a "long, hard slog" that drains our money, strains our military, and squanders our moral authority. We will act with others if we possibly can and alone only if we absolutely must.

Can anything be more moving than the joyous throngs swarming the streets of Baghdad? Memories of the fall of the Berlin Wall, and the defeat of Milosevic in Belgrade flood back. Statues and images of Saddam are smashed and defiled.

Liberation is at hand. Liberation -the powerful balm that justifies painful sacrifice, erases lingering doubt and reinforces bold actions. Already the scent of victory is in the air. Yet a bit more work and some careful reckoning need to be done before we take our triumph.
...
As for the political leaders themselves, President Bush and Tony Blair should be proud of their resolve in the face of so much doubt. And especially Mr Blair, who skilfully managed tough internal politics, an incredibly powerful and sometimes almost irrationally resolute ally, and concerns within Europe. Their opponents, those who questioned the necessity or wisdom of the operation, are temporarily silent, but probably unconvinced. And more tough questions remain to be answered.

Now, it's possible that Clark's position in these two pieces is consistent, just highly complex -- one such interpretation is provided here. Certainly he recognized the significant dangers ahead, and carefully avoided any hint of triumphalism.

But I simply don't see how these two pieces, from April and November, can be read as expressing the same opinion of the war. If the administration's diplomacy "was only a fig leaf," why does he praise the State Department and UK Foreign Office for their "virtually tireless energy," or note that "strong convictions often carry a high price? If "every diplomatic option must be explored and exhausted," why was it the right decision to move in March rather than wait for late April? (If Clark means that it was the right decision only in terms of military preparedness, surely he could have included some caveat on diplomacy?)

Most importantly, the basic underlying conviction of the November speech--that this war was a strategic mistake, and that we should have focused our efforts on Al Qaeda instead--is entirely absent from the letter and spirit of the April op-ed. The comments on "stability" seem to be in strong support of the Bush Doctrine. Indeed, how else can we understand his claim that Bush and Blair "should be proud of their resolve in the face of so much doubt"? "Philosoraptor" argues that "Resolve in the face of doubt, if it is a virtue at all, is a virtue even when one has undertaken an enterprise in error"; but this is grasping at straws. (Can you imagine Howard Dean saying that Bush "should be proud of [his] resolve"?) Clark was clearly not praising Bush and Blair for their pagan self-assertion, or for pursuing an absurd policy as knights of faith. In the context of the piece, he was saying that they made the right move.

After discussing the piece with a friend and Clark supporter, here's my take on the probable spin. Clark, we may be told, supported the effort as of April 10, but subsequently learned that (a) there were no WMD in Iraq and (b) the administration didn't adequately plan for the post-war. Thus, he now thinks the adventure was a mistake.

But this spin won't work. Clark is a four-star general who commanded a NATO mission; he has all the clearances and knows everyone in the top ranks. He had as much access to information about Iraq's WMD as any U.S. citizen outside the government. If the Bush administration guessed wrong on Iraq's weapons capability (but not unreasonably so, as Ken Pollack persuasively argues), why should we think that a President Clark would have acted differently? Moreover, the diplomatic failures leading up to Iraq were apparent to everyone well before Clark wrote his op-ed. The lack of a post-war plan doesn't explain why Clark described the war as a strategic mistake only after it was all over and he had started his campaign for the presidency.

Which brings us to another question. If he knew he wanted to run for president in April, why on earth did Clark write the op-ed? My guess is that he thought the war had gone well, and wanted to get on the right side of history (while making room to criticize the administration on the post-war). Or maybe it's what he actually believed. But in that case he owes the American people an account of what changed his mind. This isn't just a garden-variety flip-flop, like Joe Lieberman's "Private Journey Away From Privatization"; it represents a fundamental shift in thinking about one of the most important foreign-policy questions America faces, and one that seems primarily motivated by political concerns.

I'd really like to think that Clark is a viable candidate in 2004. By "viable," I don't mean that he's electable, but that he's someone I'd feel comfortable with in the White House. But after reading this op-ed, along with his earlier praise of Bush and Cheney (not to mention his bizarre comments on abortion -- up until the hour of birth?), I don't get the sense that he's the kind of person who's thought long and hard about the issues and figured out where he stands. I don't get the sense that his campaign is fundamentally about Wesley Clark's vision for the country. Instead, I get the distinct and unfortunate sense that his campaign is fundamentally about Wesley Clark.


UPDATE: See further post above.

 

2:27 PM :: Stephen (contact)

The Changing Definition of Security: In the course of studying for my two exams tomorrow, I've decided to post another essay from my International Relations tutorial (the first is linked here). Many scholars have argued that external military threats are given excessive attention in security planning. As time goes on, they predict, the security agenda will be increasingly dominated by cross-border issues such as environmental degradation, resource conflicts, mass migration, and ethnic tension. A few have gone even further, to claim that such problems should themselves be considered threats to a wider concept of "human security." I disagree:

The effort to broaden security planning to include "human security" changes the terms of debate. It goes beyond arguing that non-traditional problems such as environmental degradation are likely to create a security threat (by encouraging conflict) to claiming that such degradation itself constitutes a security threat--a threat to the quality of life of those in a polluted environment.

The theoretical difficulty with limiting the concept of security to the use of physical violence is that all economic and political relations are characterized by force, whether threatened or actually employed. The possession of economic rights in a resource is constituted by a threat of legal force against those who would attempt to violate those rights. Someone who has no economic rights to food, the argument goes, or no rights to other resources which can be traded for food, is prevented by force from obtaining food just as surely as someone who is deprived at gunpoint.

Thus, J. Ann Tickner quotes approvingly another author's definition of security "not only in terms of the internal security of the state, but also in terms of secure systems of food, health, money and trade." ... A secure society must therefore "promote a viable ecosystem while at the same time working towards the elimination of both physical and structural violence," an elimination that requires "dismantling hierarchical boundaries between women and men, rich and poor, and insiders and outsiders which have contributed to an exclusionary divisive definition of security."

However, such a conception of "structural violence" sits uneasily with traditional concepts of force and violence. First, it is unclear why such limitations are only "violent" if they are unjust. There are many just uses of violence, as in the case of threatening force (even only the level of force necessary for arrest, trial, and imprisonment) against those who would violate individual rights--and these acts do not become less forceful because they happen to be just. Second, such a definition raises the possibility of treating all unjust economic arrangements per se as cases of structural violence. Given that sophisticated health care is expensive, any system that unjustly reduces the resources available to one group will result in a decline in the group's life expectancy from what it would otherwise have been. Thus, if all unjust social arrangements are inherently violent, no unjust society is secure--and it is impossible to give a descriptive account of security without first establishing normative agreement on what constitutes a just economic and political system.

You can read it all here.

 

12:05 PM :: Stephen (contact)

Back from Ireland -- but facing a mountain of work at home. I'll try to post some reactions from the trip in a few days. In the meantime, go read a hilarious post by Steve Wu on probate law among hobbits.

 

4:27 AM :: Stephen (contact)

Back next week: After a short hiatus, posting will resume after next Tuesday.