Balkinization

Showing A Little Knee

Jonathan Knee's op-ed in the New York Times argues that the government should make it a crime to pay or receive money for sex acts in order to wipe out pornography on the Internet. He argues that such a law would have no First Amendment implications. But of course it would. It is true that general rules that are not aimed at protected speech but that nevertheless have collateral consequences on freedom of speech may be constitutional. But if the avowed purpose of the law is to restrict protected expression, it violates the First Amendment.

It is also clear that Knee's purpose is not simply to protect children-- the standard justification for restricting pornography these days-- but to prevent adults from obtaining constitutionally protected material: As he puts it "the problem isn't only what minors see. With 70 percent of men aged 18 to 34 visiting a pornographic Web site at least once a month, this material affects everyone."

Pause and consider this last quote. What exactly are these effects on everyone other than the fact that people seek out things they want to see? Later Knee remarks that "one might want more empirical evidence of actual harm from the increased exposure to pornography before taking so radical a step." Indeed. If Knee thinks that pornography causes harm, other than offense to his moral sensibilities, he might consider that studies have repeatedly failed to show much desensitization (or indeed, much other harm for that matter) from non-violent pornography-- i.e., pictures and movies of couples who are not maiming or killing or torturing each other, but simply having sex-- and it is non-violent pornography that Knee wants to ban. In fact, the studies indicate that the desensitization from exposure to violent pornography comes not so much from the sexual content of the pornography, but from its violent content. R-rated slasher films do just as good a job as hard core violent porn. And these studies only show the possibility of desensitization among college students who were the test subjects, they do not show that exposure to even violent pornography causes an increase in crime.

If Knee is really serious about the effects of media representations, he should forget about pornography and focus instead on violence, although even here the studies are inconclusive. But then, of course, he would be taking on not the pornography industry, but the mainstream media itself.

Knee's proposal to ban pornography does not reach nude modeling, or simulated sex acts. This also undermines his claims of harm. If he thinks that non-violent pornography causes harm to adults, he's given no reason to think that exposure by adults to these other forms of pornography does not share the same bad tendencies. Indeed, if Knee really wants to prohibit speech that corrupts minds, desensitizes adults and leads them to do very stupid and wicked things, I'm afraid that the pornography industry is not the first place he should be looking to censor. There are many other, far more powerful influences.

In any case, a general principle of first amendment law is that the government is not permitted to prohibit adults from reading or watching expression because of the fear that adult minds will become corrupted. Conceivably Knee's own editorial might cause harm, because it might desensitize adults to the importance of freedom of speech and lead some officials to engage in behavior that subverts the First Amendment. Thankfully, this is not a sufficiently good reason to censor it.

Posted 10:29 AM by JB [link]