Dispatches from the Creation Wars

The Baltimore Sun’s article on the Bush administration’s anti-pornography efforts begins with this:

Lam Nguyen’s job is to sit for hours in a chilly, quiet room devoid of any color but gray and look at pornography. This job, which Nguyen does earnestly from 9 to 5, surrounded by a half-dozen other “computer forensic specialists” like him, has become the focal point of the Justice Department’s operation to rid the world of porn.

And ends with this:

Nguyen, father of a 2-year-old girl, and his co-workers spend their days scouring the Internet for the most obscene material, following leads sent in by citizens and tracking pornographers operating under different names. The job wears on them all, day after day, so much so that the obscenity division has recently set up in-house counseling for them to talk about what they’re seeing and how it is affecting them.

“This stuff isn’t the easiest to deal with,” Nguyen said recently while at his computer. “But I think we’re going after the bad guys and we’re making a difference, and that’s what makes it worthwhile.”

I find the idea of people whose sole job it is to watch dirty movies, looking for something to prosecute, quite amusing. It reminds me of the old blind Supreme Court Justice Harlan, sitting in a room with the other justices watching XXX rated movies to determine if they were obscene or not. Since he could not see what was going on, he would repeatedly ask his clerk to describe what they were doing on the screen and, upon being told, would exclaim, “You don’t say!”. At the same time, I am appalled by the fact that our government has nothing better to do than to protect consenting adults from watching other consenting adults do things that are entirely legal in the United States.

The Baltimore Sun was, of course, the home of H.L. Mencken, the Sage of Baltimore, who would be savaging the John Ashcrofts of the world were he alive today. This is, after all, the man who defined puritanism as “the haunting fear that someone, somewhere, may be happy.” Imagine what he would say upon reading this in his beloved Sun:

In a speech in 2002, Ashcroft made it clear that the Justice Department intends to try. He said pornography “invades our homes persistently though the mail, phone, VCR, cable TV and the Internet,” and has “strewn its victims from coast to coast.”

“Invades our homes”? Against our will? Is there someone going into your house, putting a gun to your head and making you download porn from the internet or order pay-per-view movies on cable or satellite TV? Yes, I know it’s easy to come across porn on the internet, entirely too easy for kids in my view, but it’s not difficult to block it either. If I had children, I would absolutely install the parental control software to prevent them from being able to view such material. But that’s entirely the point – you have the choice. We all have the choice. And a huge percentage of adult Americans choose to view pornography in one form or another, to the tune of around $10 billion a year.

I’ve always found it ironic that conservatives preach about the free market so much, but don’t trust people to make their own purchase choices. Capitalism requires consumers making their own choices, demand leading to supply. But as soon as the demand is for something they don’t like, they want to bring down the power of the state to destroy this free market. Add to this the additional irony of hearing conservatives preach about “smaller government” while spending millions and millions of our tax dollars to fund additional FBI agents, postal inspectors, prosecutors and investigators to run sting operations and bring court cases against adults for selling products to adults depicting entirely legal acts that they watch in the privacy of their own home. But hey, why let consistency and rationality interrupt a perfectly good moral crusade?

Comments

#1 flatlander100
April 7, 2004

I suspect a good deal of what Mr. Nguyen [and so Mr. Ashcroft] are looking for and going after is kiddie porn, which, by definition does NOT involve consenting adults in action. There are, I am informed, sites out there on which you can see adults engaged in sex with toddlers and even with infants. If Mr. Nguyen, on behalf of Mr. Ashcroft and so by extension on behalf of “the people,” is going after those who make, transmit, or order kiddie porn in the US, I say “have at ‘em!” Nail the bastards.
As for the rest: you are right. It’s a waste of time and money. Somebody wants to actively seek it out, in his or her own home on his or her own machine, who cares? Certainly I don’t, and Ashcroft [in his public capacity] should not either.
Ignoring adult porn, besides, would give him and his minions more time to go after the kiddie porners.
#2 Ed Brayton
April 7, 2004

If that was the case, I would, like you, be enthusiastically behind them. But none of the cases they have prosecuted so far have involved child pornogaphy. As the Sun article notes, in the Clinton administration they pursued a lot of child pornography cases but didn’t pursue other anti-pornography cases. I assume that there are still ongoing efforts to stop child pornography in the Bush administration, which I applaud and support completely. I am referring only to adult pornography. Anything that involves children, I say bring down the house on the bastards behind it with extreme prejudice.
#3 Aaron Pohle
April 7, 2004

Why would you get the impression that they are trying to eliminate porn? They are not creating law, they are enforcing existing laws. There is no action that they can or really will take against legal porn sites. The purpose of such investigations are to find sites that are engaged in illegal activity, which by definition in our current laws is not about consenting adults.

It is not that I don’t trust people to make their own purchase chioces, but I believe that children are not old enough to make those choices rationally and should be protected from the manupilations of adults. That is exactly what the FBI and the Justice department seek to do with thier investigations of porn sites.
#4 Ed Brayton
April 7, 2004

Why would you get the impression that they are trying to eliminate porn? They are not creating law, they are enforcing existing laws. There is no action that they can or really will take against legal porn sites. The purpose of such investigations are to find sites that are engaged in illegal activity, which by definition in our current laws is not about consenting adults.

Because none of the prosecutions undertaken so far have been for child pornography, but for “obscenity”, which is an entirely different set of laws. Child pornography is generally covered under child abuse laws. Obscenity law, on the other hand, is highly subjective. The closest thing to a legal standard for obscenity is the “community standards” criteria, which is notoriously impossible to define. These are entirely questions of prosecutorial discretion. The justice department did not pursue such cases under Clinton (insert the obvious joke), they are under Bush (insert the even more obvious joke). They pursue them mostly to intimidate, and most of those charged end up copping a plea rather than spend a ton of money on attorneys. The one guy who will fight them is Larry Flynt, who has an enormous amount of money and cares more about winning than he does about the money.

It is not that I don’t trust people to make their own purchase chioces, but I believe that children are not old enough to make those choices rationally and should be protected from the manupilations of adults. That is exactly what the FBI and the Justice department seek to do with thier investigations of porn sites.

If that was the case, I’d be 100% on their side. But that’s just not the case. They’re going after video producers who produce adult pornography marketed exclusively to adults, like Extreme Associates. They’re going after the harder, more extreme porn, stuff with hardcore bondage in it, but it’s still consenting adults who are making it and buying it. I would go so far as to argue that the money and time they’re wasting on pursuing those cases should be put into tracking and prosecuting child pornography.
#5 Austin
April 7, 2004

Why the fight against porn? Because, you know, Western civilization is at stake. You’re either with us or against us. Porn is an “imminent threat.” There are Weapons of Masturbatory Destruction which need to be destroyed before they are deployed against the United States. We will rely on a Coalition of the Antisexual to counter this danger.
#6 Aaron Pohle
April 8, 2004

Ok, I looked into it a bit more and you are correct with many cases they are looking into the more extreme porn, rather that just cases of child pornography or child access to pornography.

That being said, I have a very hard time defending what they are prosecuting.

First of all, I think it is a very significant point that they are not making laws, they are enforcing exising ones.

Secondly, have you looked at the details of what they are prosecuting against? No, I admit I don’t think that something should be illegal simply because it is disgusting. To quote from a bad(but funny) movie “Bad taste is not a crime, your honor.” (Armed and Dangerous)

I do, however, think that it is a tremendous mistake to have laws which are unenforced. With an issue such as this, where the law is a grey area, I think it is a good thing that we are prosecuting it. That gives the judges room to set precidents to further define the law that exists, which removes some of the greyness from the law. This is a good thing in my opinion. This is not a fight to “eliminate porn”, instead it is a fight to enforce the law that set a standard for what is acceptable to publish. Perhaps you disagree with such a law, if the judges agree with you, then you will see many of these cases fail to obtain convictions or even see many of them dropped.

Keep in mind, however, that for such a case to go to trial, a judge does have to believe that the case has legal merit. If you disagree with a law, it is not a lack of enforcement that you should hope for or seek, rather you should seek to change such law.

Also, it is interesting to note, a large part of the population feels that Ashcroft is not enforcing obsenity laws enough and are criticising him for it. Since it is their money Ashcrot is using as well, perhaps he is finding a decent balance.

Then again, perhaps not, perhaps the law is wrong. If you sought to strike the law down, I would not oppose you. I do, however, fully support the FBI and the Justice Department seeking to enforce the law we have. If they are enforcing it improperly, as I believe you think, then the courts are there to stop it. That is how our justice system does and is suposed to work.
#7 Ed Brayton
April 8, 2004

Aaron, I disagree about it being a good idea to enforce these laws. The problem is that these laws are not like laws against speeding or against murder, where what violates the law is obvious and if you break it, you should be punished. These are entirely subjective laws with entire subjective criteria. William Brennan participated in and wrote the opinions in numerous obscenity cases. He was the one who famously said of obscenity, “I can’t define it, but I know it when I see it”. But in the end, he concluded that there simply was no way to write a law against it without giving enormous prosecutorial power to law enforcement to stamp out something based on nothing more than their own personal objection to the content. And this makes it highly susceptible to being used as a political tool, throwing a bone to the religious right by ruining a few companies to show you’re standing up for morality and decency and mom and apple pie. I think such laws should simply be gotten rid of. If those who participated in the film are consenting adults and those who watch it are consenting adults, and no objective law was broken (i.e. snuff films), it should be legal. Period. Pushing prosecutions in this manner does nothing to bring that on, in my view.
#8 Aaron Pohle
April 8, 2004

Ed,

I think that you and I primarily disagree on approach. I think that the law is porly defined, but by prosecuting under that it it creates greater definition. Not prosecuting it, simply leaves it there to be abused later. To not enforce the law is, in my view, to ignore the problem.

Some would say that is exactly what has happened here. Since there was a long period under Clinton where the law was not defined through prosecution, people push the boundries of that law further and further. Then with the change of administration, they can get caught in a whiplash as the law is once again enforced. I think that is a bad situation. If the law is wrong, it should be removed, not simply unenforced.
#9 Ed Brayton
April 8, 2004

I think that IS what’s happening here, it’s being abused. But I think any enforcement of any law regarding what consenting adults do is an abuse of our rights. But again, I think this is an entirely different type of law than laws against murder or theft. It’s a law that is begging for abuse and should be done away with. Unfortunately, prosecutions don’t often define the law because most defendants merely plead guilty. If this leads to a court case where such laws get scrapped entirely, I’ll be glad it happened. But it could very well lead to the opposite as well. And regardless of all of that, the enforcement of such laws is a violation of liberty.
#10 Aaron Pohle
April 8, 2004

Not everything that consenting adults do to each other is legal, nor should it be. The primary example that I can think of is fraud. It is illegal to defraud someone, even in cases where both parties are consenting. The idea is to protect people from harming themselves in cases where they are not reasonably able to protect themselves.

A similar argument could be made against publication of materials that are ‘obscene’, espeically when there are laws on teh boooks against it. I think such an argument would be a bit of a stretch, but there is some validity to it. Let us just assume that watching extreme acts of violence and sexual perversion(which I think describes most of the depictions that Ashcroft is attempting to prosecute) does create psycological harm to people (a point reinforced by the councelling needed by the Justtice Department investogators). Would it not then be unreasonable for the government to protect people from such harm?

I’m not saying that I think that is the case here, but that is what, I suspect, the law is partially based on.

Still I don’t think the law is a good one, but I would rather we enforced the laws we have than have laws we dont enforce.

I do disagree with you, however, when you say that “prosecutions don’t often define the law because most defendants merely plead guilty.”

The point for the law to be defined is not in the courtroom, but outside it. It is the court reject a motion to dismiss the case that defines the law. It is a higher courts decision to uphold a lower decision or overturn it based on appeal. When someone pleads guilty it is only after a judge considers the case to have merit, and the defendants believe that their chances of winning such a case are poor. In such a case the aw is defined to include the actions of such defendants as being illegal.
#11 Mike Altarriba
April 9, 2004

“Not everything that consenting adults do to each other is legal, nor should it be. The primary example that I can think of is fraud. It is illegal to defraud someone, even in cases where both parties are consenting. The idea is to protect people from harming themselves in cases where they are not reasonably able to protect themselves.”

Oh, you can’t be serious! We’re talking about fraud! By definition, the defrauded person is not giving -informed- consent!

“A similar argument could be made against publication of materials that are ‘obscene’, espeically when there are laws on teh boooks against it. I think such an argument would be a bit of a stretch, but there is some validity to it.”

I think this argument is going to be as “well supported” as your last one…

“Let us just assume that watching extreme acts of violence and sexual perversion(which I think describes most of the depictions that Ashcroft is attempting to prosecute) does create psycological harm to people (a point reinforced by the councelling needed by the Justtice Department investogators).”

As you say, an assumption.

“Would it not then be unreasonable for the government to protect people from such harm?”

Since cigarette smoking and alchohol drinking have been shown to definitively harm both its users and those around them, shall we be making those activites illegal as well? Why single out porn, especially given the dubious nature of the evidence against it?

“I’m not saying that I think that is the case here, but that is what, I suspect, the law is partially based on.

Still I don’t think the law is a good one, but I would rather we enforced the laws we have than have laws we dont enforce.”

So, your stance is “Laws on the books? Enforce ‘em! We’ll figure out if they make any sense later.”

Unenforced laws don’t do anything good for the legal system… and neither does enforcing bad law. And, make no mistake, this is bad law. What defines obscene? If a picture is taken in San Francisco, do we have someone in Salt Lake City decide if its obscene or not? Just how does one determine obscenity?

Given the troubles we have today, war, a bad economy, and all the rest, is this issue, sexual material produced by volunteers and consumed by adults who do so by choice, really what should be at the top of the Attorney General’s priority list? No, this is happening because John Ashcroft is a Taliban wannabe who couldn’t get elected over a dead man, and whose lust to put the power of the US government behind his own puritanical, fundamentalist religious views is what’s driving all this… and it stinks.
#12 Aaron Pohle
April 9, 2004

Mike,

“Oh, you can’t be serious! We’re talking about fraud! By definition, the defrauded person is not giving -informed- consent!”

Informed consent versus consent, yes. I’m confused, first you say I can’t be serious then you make the same point that I did. We both seem to feel that the law should intervene in some cases where adults give their consent, as that consent is not always considered valid.

“Since cigarette smoking and alchohol drinking have been shown to definitively harm both its users and those around them, shall we be making those activites illegal as well?”

I suspect that many of the people who put forth such laws would say yes. Alchohol was, in fact, made illegal for a period of time. Since it was enforced, the foolishness of such a law was made apparent to everyone and the law was repealed. Would you rather have had them just unenforce the law most of the time until you either ran into a cop who didn’t like you or a very conservative administration was elected and suddenly you are arrested for doing what you thought was acceptable, even though it was technically illegal? I would not, I would prefer to have the law changed, which will only happen if it is actually enforced and people see what is wrong with it. Another example of this was the recent LAwrence vs Texas case involving sodomy. Would it not have been better to have had the law tested and changed before it was made nearly obselete, instead of it just being buried to be brought out and abused just a few years ago?

“So, your stance is ‘Laws on the books? Enforce ‘em! We’ll figure out if they make any sense later.’”

No, my stance is to enforce the law whcih forces people to deal with the issue instead of brushing it aside. If this law had been enforced, then it would have have either evolved and become better developed or it would have been eliminated. Either situation would have been good. I fail to see how ignoring the issue would be better.

“Unenforced laws don’t do anything good for the legal system… and neither does enforcing bad law.”

This is where I think you are wrong. Enforcing a “bad” law causes it to either become a better law or to be eliminated.

“…really what should be at the top of the Attorney General’s priority list?”

Are you seriously claiming that the assignment of 7 foriensic investigators and initiation of about 20 prosecutions makes this at the top of the Attornet General’s priority list?

Further, what do you expect the man tasked with prosecuting domestic federal criminal behavior to do about the war or the economy?

“No, this is happening because John Ashcroft is a Taliban wannabe who couldn’t get elected over a dead man, and whose lust to put the power of the US government behind his own puritanical, fundamentalist religious views is what’s driving all this… and it stinks.”

Actually this is happening because it is the law, and a fairly large and fairly vocal part of the electorate wishes to see it happen. I’m not saying that makes it right, or even that the majority support it. There are many many people in this country, however, who do. They also pay taxes and they have elected this administration. Quite frankly, a lot of them don’t feel that Ashcroft is pursuing this issue enough.
#13 DS
April 12, 2004

Just in case I get laid off from the exciting world of high finance….how does one go about applying for a job reviewing porno…

~DS~
#14 Aaron Baker
April 14, 2004

Aaron Pohle commented:

“I think that you and I primarily disagree on approach. I think that the law is poorly defined, but by prosecuting under that it it creates greater definition. Not prosecuting it, simply leaves it there to be abused later. To not enforce the law is, in my view, to ignore the problem.”

Yes, obscenity laws are notoriously poorly defined, but much of blame for that can be laid (at least indirectly) at the feet of prosecutors. Judges have to pronounce on the criminal cases that come before them, sometimes with such ultimate results as the proposterous Miller test, which requires judges to be art critics. (Consider that: you’re in the dock for obscenity, and whether or not you go to prison depends on whether a trier of fact decides that your product “lacks serious literary, artistic, political, or scientific value.”) Why would you expect further prosecutions, further court decisions, to clear things up rather than further muddy the subject?

The other problem with prosecutions is that, whether they lead to improved definitions or not, they surely to lead to something else: people going to prison for an activity that hasn’t been proved to cause harms of the kind that warrant criminalization. (Even in the (pretty disastrous) war on drugs, one can still point to heroin or cocaine and say: this stuff is indisputably harmful. There is no equivalent evidence for harm done by porn.) I would argue, in other words, that there is no problem that we need to worry about ignoring when we don’t enforce this particular law.

As for removing the law, legislators are always understandably reluctant to try to jettison morals-based laws, because their doing so can then be represented as condoning the activity attacked by the law. Given that I see no merit at all to obscenity prosecutions, I would prefer to see happen to obscenity law what has happened to the adultery statutes that several state criminal codes still contain (my own dear Illinois, for example): they’re ignored.

I used to be a prosecutor (state, not federal). I know from personal experience that the resources of prosecutors are limited, and there are plenty of murderers, rapists, embezzlers, kiddy porn purveyors, and (God help us) terrorists out there to use up those limited resources.
#15 Ed Brayton
April 14, 2004

Excellent comment, Mr. Baker. I agree wholeheartedly.
#16 Aaron Baker
April 14, 2004

I guess it eventually had to happen.
#17 Hannah7
May 19, 2004

Revelations 18 1-24 “Babylon the Great Whore DESTROYED.” Oh yes 10 Billion is only a drop in the bucket, the Great Whore has the bucks, but fortunately we know the end of the story. “Warn the wicked and save your blood”, so heres the warning!!!! God will end up destroying the Porn Industry and His will be complete and utter desruction. The invitation from God is to come out of her,
and repent if you donot you will spend an eternity in torment. All the bucks in the world cannot save you then!!! We should go ahead and wage the good fight, that is much better than doing nothing! God speaks of men who do nothing, they are like worthless dross.
#18 Ed Brayton
May 19, 2004

Wait, the Great Whore of Babylon is the porn industry? And all this time, I thought it was the Roman Catholic Church, or the European Union. Or to be quasi-literal, even Iraq. But thank you so much for the warning. I’ll take it with all the seriousness that it is due. Which is to say, not much. Cheers!