Dispatches from the Creation Wars

The Absurdity of John Bambenek

STACLU may still be down for the count, but at least one of their logic-impaired scribes is still shoveling out the nonsense. John Bambenek has a column at the mensnewsdaily claiming that the ACLU is “fighting for the trafficking of women”, and it’s predictably absurd and filled with irrational arguments.

The ACLU is arguing before a federal appeals court that the United States is funding AIDS prevention unconstitutionally. Specifically, they argue that having a ban on funds to organizations that promote commercial sex work inhibits free speech. It should be no surprise that the ACLU is in bed with those who want to legalize prostitution.

This is a rather blatant misrepresentation of the facts of the case. The legal issue here is compelled speech; the law being challenged requires that an organization make a specific declaration that they oppose the legalization of prostitution. The legal premise is known as the unconstitutional conditions doctrine, the notion that the government cannot condition the receipt of a benefit by requiring something unconstitutional. For example, they can’t give food stamps only to those who vote for George Bush, or only to those who sign a pledge supporting the Iraq War.

It’s a controversial doctrine, sometimes invoked by the courts and sometimes not. Some situations, like the ones I mentioned above, are obvious; no one would see such policies as constitutional. But in other cases, there are much closer calls and it’s difficult to draw a clear dividing line between them. For instance, can a city refuse to give a benefit generally available to non-profit groups to a group that engages in discrimination? That’s the subject of a major case involving Berkeley and the Sea Scouts, which upheld the city’s authority to do so.

Can a public university refuse to recognize or fund religious student groups, either because they are religious or because they discriminate against other religions and/or against gays? I say no, but the courts are completely confused on the subject. Rosenberger says they can’t refuse to do so on the basis of religion. CLS v Southern Illinois says they can’t do so because such groups discriminate. CLS v Hastings says they can. The Supreme Court has yet to rule on the latter issue.

The point is that this is a very muddled area of law and both sides tend to be inconsistent about it. The right, for instance, loves the following argument, taken from Bambenek’s essay:

It is true that advocating the legalization of prostitution is free speech. That doesn’t mean that such speech needs to be funded by the government. As much as some like to think otherwise, Uncle Sam isn’t an ATM machine for every special interest. The old saying goes, “He who pays the piper calls the tune.” If one doesn’t like the government’s rules, don’t take the government’s money.

They love that argument…until they don’t. They love it in cases like this, or those dealing with NEA funding. When it comes to cases like the Berkeley Sea Scouts case, this argument is completely forgotten. Same with cases that involve funding for faith-based groups. The left, on the other hand, is generally all for preventing the government from funding religious groups but is outraged with conditions like this one on family planning groups.

If there is a coherent and consistent doctrine in there somewhere that doesn’t depend on whether one supports the idea being expressed, I have yet to find it. At the moment we seem to be stuck in Potter Stewart’s “I know it when I see it” territory.

It should also be noted, of course, that being in favor of legalizing prostitution (which I am) is not the same as being in favor of the “trafficking of women”, nor does support for these groups’ right to not have to be explicitly against legalization in order to receive funding is not the same thing as being in favor of legalizing prostitution at all, any more than being in favor of the KKK’s right to march means being in favor of what they say. But people like Bambenek tend to miss these not-so-subtle distinctions.

More importantly though is that the advocacy for legalized prostitution and AIDS prevention are mutually exclusive. One cannot support the reduction of AIDS infections and support legal prostitution at the same time. Prostitution remains one of the leading vectors for AIDS infection. This is true in the case of both legal and illegal prostitution.

This is utter nonsense. The difference between legal and illegal prostitution is that legal prostitution can be regulated. Weekly STD and AIDS testing can be required for the very purpose of reducing infections. A regulated sex industry is far, far safer than an unregulated one. Does he really think a pimp is gonna care about johns getting infected, or that a girl on her own trying to scrape by can afford such testing? Regulation is the only answer, and it has proven to work very effectively in those countries where prostitution is legal and regulated. The infection rate is a fraction of what it is when prostitution is illegal.

While on its face condoms seem like they could prevent the spread of AIDS, the trust is that they don’t. HIV infection rates increase in countries that have condom distribution programs. Abstinence programs, on the other hand, has been shown in Uganda to reduce AIDS infections. The simple truth is that when one only has sex with one’s spouse, the risk of AIDS exposure approaches zero.

What this has to do with legalization of prostitution is beyond me. Has he discovered an “abstinence program” that will do away with illegal prostitution? Of course not. You can preach abstinence all you want, but some men are still going to go to prostitutes and some women are still going to become prostitutes. And making prostitution illegal also clearly doesn’t stop either of those things. What it does stop, of course, is all ability to regulate it and protect prostitutes and johns from infection.

There are a multitude of studies to show the high level of abuse that prostitutes suffer (see a few here). Women are literally bought and sold as property.

All of which takes place precisely because prostitution is illegal. Where prostitution exists as a black market in seedy neighborhoods run by pimps, of course prostitutes are abused. Who are they going to turn to for help, the police who will arrest them for prostitution? Of course not. Where prostitution is legal and regulated, as in the Netherlands or in some counties of Nevada, this problem is dramatically reduced. The women can form unions to protect their interests, the pimps who do the abusing are cut out of the system and johns who might think about abusing a prostitute can be easily prosecuted.

The argument for legalization goes something like this. Prostitution will happen anyway but legalization and regulation will help stem the abuses. The argument has 50,000 foot appeal. Using the same logic, slavery (which still exists in many places) should be legalized so underground slaves can be given some measure of human rights. The fact that the ACLU and the bevy of left-wing international groups don’t argue for the legalization of slavery shows the logical inconsistency of their position.

Wow. That kind of stupidity doesn’t come naturally; you’ve gotta work to develop irrationality at this level. It takes time, effort and dedication to become that clueless. I may have to offer to host STACLU myself; I miss having so much of this nonsense to laugh at every day.


  1. #1 kehrsam
    January 3, 2007

    Being something of a free speech absolutist, I would allow all of the programs you mention. If the benefit is generally available, and the program is eligible, that should be the end of the question. Whether the receiving group is otherwise discriminatory or religious or whatever is simply not relevant. This is merely a variant of the logical fallacy that if something is part of a larger “Agenda” it must be opposed, even if perfectly sensible in itself.

    Yes, money is fungible. Yes, sometimes there are further consequences, often ones which can be forseen with high probability. Democracy can be messy that way.

    Several years back, we had a controversy here in NC when a local Klan group applied to be part of the “Adopt a Highway” litter control problem. After a lengthy court battle, they finally got their stretch of road. And lots of people suddenly decided to take their trash out to that stretch of road. But they had the right to give it a try.

    The one class of cases where we might allow discretion is something like the Sea Scouts case, where the available benefit might be limited. If there are only a few slips available for the program and more qualifying applicants, then I can see the government need to prioritize the use.

    By the way, if we make murder legal, we’d be able to regulate that, too. I’m not sure how he missed such an obvious argument.

  2. #2 Michael Ralston
    January 3, 2007

    Just for the sake of tightening up your arguments, I’d like to see you explain what the relevant distinction between slavery and prostitution is, Ed.

    You didn’t really respond to that one except with an insult, and I’m sure there is a good response.

  3. #3 Monimonika
    January 3, 2007

    Michael Raiston,

    What I don’t get is what the similarities between slavery and prostitution are. In slavery (in the sense that I think you’re referring to), a human being that is on sale has no say in where he/she gets sold to, what the terms of sale are (how the slave gets handled, etc. Although a law prohibiting excessive violence and neglect to slaves, ala “cruelty to animals”, may be implemented), won’t get any of the money, or even the choice to quit.

    In prostitution (if it were legalized and regulated), the prostitute gets the money for the service he/she provides, can quit at any time (just like any other job), and can get the law or company policies to protect him/her from abuse (it’s a business, and businesses want to keep their workers from quiting).

    Yes, in the present illegal and unregulated form of prostitution there is coercion into the profession and getting out of it is risky. But that’s why it should be regulated so that prostitutes can have the choice to earn money the way they want to with little fear of becoming like, well, slaves.

    And here’s where I start losing my focus:

    There are other versions of slavery, though, that have involved, not capturing unwilling people, but of agreements between all participants (owner, slave, middle-man, etc.) on how long a person has to be slave to another person to repay a debt. There were some that (unlike the American version) maintained that the status of slave was not hereditary and thus children of slaves were not automatically slaves themselves. But I don’t think that is the slavery that most here have in mind.

  4. #4 Brian X
    January 3, 2007

    The difference is one of consent. A prostitute, in theory, can choose to be a prostitute (at least in situations where it’s legalized and regulated — I don’t hear the owner of the Bunny Ranch getting arrested for abducting women from casinos and chaining them to beds). I don’t think anyone willingly sells themselves into slavery.

    Which is not to say that prostitution and slavery don’t occasionally coincide (think of a Triad-connected Asian massage parlor — if that isn’t slavery I don’t know what is). But generally those who advocate the legalization of prostitution find the idea of forcing someone into it abhorrent.

  5. #5 DuWayne
    January 3, 2007

    Monimonika -
    There are other versions of slavery, though, that have involved, not capturing unwilling people, but of agreements between all participants (owner, slave, middle-man, etc.) on how long a person has to be slave to another person to repay a debt. There were some that (unlike the American version) maintained that the status of slave was not hereditary and thus children of slaves were not automatically slaves themselves. But I don’t think that is the slavery that most here have in mind.

    Actually, in a lot of situations (The Marianas Islands for example) where that is precisely the form of slavery that prostitution takes. While the slave may not agree upfront to be a sex worker, they do agree to work under slave like conditions – in return for their chance at a better life and ability to send something home to their family.

    You might be surprised to note how much of that happens all over the world, even today. And it is quite often the way people, boys, girls, women and even the occasional man, become prostitutes. Atrociously, that even happens in the U.S. – usually to illegal immigrants. But take the sex trade in Bangkok, most of the girls and boys involved, do it to send money home to their families.

  6. #6 Michael Ralston
    January 3, 2007

    Monimonika: I don’t know what the similarities are. I’m referring to the fact that Bambenek made the comparison, and instead of identifying a difference that makes the analogy invalid, Ed simply ridiculed him. Bad form, you know?

  7. #7 Raging Bee
    January 3, 2007

    Michael: you asked for a description of the difference betrween prostitution and slavery, and you got one — clear, obvious, and in plain English. Do you have any comment on that, or are you just going to duck the issue and whinge about “bad form” instead?

  8. #8 doctorgoo
    January 3, 2007

    DuWayne said:

    But take the sex trade in Bangkok, most of the girls and boys involved, do it to send money home to their families.

    You vastly oversimplified this DuWayne. Most prostitutes in Thailand work in night clubs (a-go-go’s) or massage parlors. So aside from the few who are forced into prostitution by abduction, or to pay off a loan, (or the like), most prostitute themselves to maintain a fast lifestyle that they couldn’t otherwise afford with limited education.

    It is true that Thailand doesn’t have Social Security or anything else resembling a social net for the elderly. So culturally speaking, it’s the duty of all Thai’s to support their older relatives. So yes, many people come to work in the big cities to earn more money to send back home.

    But to say that people become sex workers in Bangkok just to support their families is far from true.

  9. #9 Greg Byshenk
    January 3, 2007

    If there is a coherent and consistent doctrine in there
    somewhere that doesn’t depend on whether one supports the idea being
    expressed, I have yet to find it.

    I think that there exists a coherent and consistent doctrine, though
    I’m not sure that anyone involved is actually espousing it.

    One can find this doctrine in the distinction between speech and
    action. That is, the government may not require advocacy of a particular
    position as a condition of funding (speech), but may well require that
    an organization recieving funds act in accordance with whatever rules it
    sets forth as a condition of the funds being provided. For example, an
    organization cannot be required to endorse equal rights for
    homosexuals — and must remain free even to advocate against such
    rights — but can be required to provide its services in manner that does
    not discriminate against homosexuals. A public university may not refuse
    to fund a student organization merely because the organization is
    “religious”, but may require that the organization follow the rules for
    student organizations — for example, that membership be open to all
    enrolled students.

  10. #10 Ed Brayton
    January 3, 2007


    That’s one possible place to draw the line, but I’m not sure I agree with it (I’m also not sure I have a better suggestion, though). I will note that when it comes to student groups at universities, those groups exist almost exclusively for advocacy and association of the like minded, not “providing services.” And if the action taken essentially eliminates the ability of those groups to retain their identity, as it clearly would, for example in requiring the Christian Legal Society to admit Muslims or atheists, then I still think it crosses the line. That still doesn’t help me identify a clear line, however, I fully admit.

  11. #11 Michael Ralston
    January 3, 2007

    Raging Bee: No, I’m not going to do anything other than complain about fallacious argument here, because I agree with what Ed said originally.

    Which you might have worked out if you had read my first post, but hey, indignation is fun, right?

  12. #12 Greg Byshenk
    January 4, 2007

    Ed, I’m not necessarily endorsing the principle (though I think it makes
    a certain amount of sense), but I am saying that it is reasonably coherent
    and consistent.

    Of course, such could cause problems for some organizations, to the
    extent that they might choose not to accept funding. That said, I don’t
    think the Christian Legal Society is a good example. After all, if a
    Muslim or atheist actually wanted to commit himself to “proclaiming,
    loving and serving Jesus Christ” (which seems unlikely, perhaps even
    perverse), then why shouldn’t he be able to join?

    The real problems arise when acting in accordance with the rules means
    acting against what an organization considers to be its principles. An
    example might be a Christian adoption organization forbidden to discriminate
    against Gay couples. That might be unfortunate, but is not (at least IMO)
    an improper burden. If you wish to accept the funds, then you accept the
    rules that go with them. You don’t need to promote them or even agree with
    them, but you must act in accordance with them. And if you can’t
    then you have to do without the funds.