Monday, April 12, 2004

Sex in America: Pornography and the State

Over at the Cato Institute, I saw this article by Eugene Volokh. Volokh is a law professor at UCLA, and I recognized his name since I work in the law library. So I thought I'd give it a read.

Selected quote:


So [for the Administration's war on porn] we really have three possible outcomes:

(1) The crackdown on porn is doomed to be utterly ineffective at preventing the supposedly harmful effects of porn on its viewers, and on the viewers' neighbors [because of the easy availability of international porn on the Internet].

(2) The crackdown on porn will be made effective -- by implementing a comprehensive government-mandated filtering system run by some administrative agency that constantly monitors the Net and requires private service providers to block any sites that the agency says are obscene.

(3) The crackdown on porn will turn into a full-fledged War on Smut that will be made effective by prosecuting, imprisoning, and seizing the assets of porn buyers.


How the US should deal with pornography from a public policy perspective is a very complex issue. And I don't claim to have the answers. I have a lot more questions than answers.

But I think it's an interesting issue, so I'm going to give you some of my thoughts. And please let me know what you think.

At the outset, it may be useful to distinguish between erotica and pornography. erotica involves acts of mutuality and consensual sex while pornography involves acts of debasement and subjugation of women and/or men. Essentially, erotica is good smut and pornography is bad smut.I think this is an interesting distinction, but a difficult one to apply.

There is so much porn/erotica out there....is it really practical or fair to try to ban all of it or none of it? Do we need to develop a more sophisticated social discourse before we make public policy about sexuality? I think so.

Currently the law distinguishes between child porn and adult porn in the United States. But that is as sophisticated as the discourse usually gets.

I think much of our inability to develop good social policy on pornography and the sex industries involves a typically white, christian, middle-class inability to talk about anything sexual in public. That's just crazy, if you ask me.

Sex is a part of our lives and we ought to discuss it like adults. I live in West Hollywood, California, which is a very gay friendly city. Gay men seem to like porn quite a bit, so I am not infrequently greeted by pictures of nude men while walking down the street. So my perspective is perhaps out of sync with most people's views.

(BTW, I'm not gay, but I heartily support full political and legal enfranchisement for gays, lesbians, bi-sexuals, transgendered people, gender queer, etc.)

My wife, Sarah Deer, is also a nationally known expert on sexual assault, domestic violence, and violence against American Indian (or First Nation) women. We have often discuss issues of pornography and sexuality.

(As a side note, Sarah was recently honored with a Vagina Warrior award by the Spirits of Hope Domestic Violence Prevention coalition. That's an interesting way of addressing the sexuality issue, by talking about Vagina Warriors. The award ceremony took place before the Vagina Monologues in Tulsa, Oklahoma and Eve Ensler was also given a Vagina Warrior award.)

One of the central questions from a public policy perspective involves whether pornography leads to violence against women. Catherine MacKinnon wrote a law that banned the sale of pornography, but it was struck down on First Amendment grounds.

I think Jane Caputi was rather insightful when she wrote:


[O]nce again the feminist connection between violence against women and pornography is potentially discredited by its association with [Christian] fundamentalism. Yet few feminists would agree with the religious Right's claim that pornography is the sole or root cause of violence against women. Rather, pornography (as well as its diffusions through mainstream culture) is a modern mode for communicating and constructing patriarchy's necessary fusion of sex and violence, for sexualizing torture. Clearly, that imperative has assumed other forms historically: the political operations of military dictatorships, the enslavement of Africans in the "new world," witch hunting and inquisitions by the Christian church and state, and so on. The basic elements for a gynocidal campaign --- an ideology of male supremacy, a vivid imagination of (particularly female) sexual filth, loathing of eroticism, belief in the sanctity of marriage and the family, and the containment of women in male-controlled [institutions] --- structure [Christian] fundamentalism's very self-serving opposition to pornography.

Source: Caputi, Jane. The Sexual Politics of Murder, Violence Against Women: The Bloody Footprints (Sage Publications: Newbury Park) c1993, page 18.


I think Ms. Caputi's writing help provide a context for the pornography debate.

And it is an issue that isn't going away. In mainstream politics, the whole V-chip debate, the Meese commision, John McCain's pledge to stop Internet pornography, and now Ashcroft's suits against pornographers keep bringing this issue into the news.

Feminist scholars, as evidenced above, are also very interested in the role of pornography and violent, sexual fantasies.

I know that New Zealand has a commission that views all the pornography and censors what it finds to be objectionable.

Of course, determining what is objectionable in this country runs into the First Amendment as well as the practical difficulty of getting any two people to agree on what is good porn (or erotica) and what is bad porn.

On the other end of the spectrum, many European countries have much more relaxed views on pornography and have far lower rates of sexual assault than the United States.

As a side note, I find it interesting that many people who think the 1st and 4th amendments should be inviolate, would write the second amendment out of the Constitution, and vice versa.

Actually, I don't have any idea what public policy should be on this issue.

I support legalizing prostitution to provide some regulation and protection to sex workers and their clients. Sex workers should get tested, pay taxes, and be able to expect police protection.

I think Professor Volokh points out some of the practical problems with regulating pornography is this country. Pornography is a huge global industry and local solutions are not likely to be effective. And if we cannot even agree as a country on what our public policy should be, then we are unlikely to even develop a local solution.

So what do you think we should do? Feel free to send me an email or post a comment.

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