by Неизвестный
But we are left with a contradiction. It appears that the same person is willing to spend a positive amount of money to consume pornography, and a positive amount of money to be prevented from consuming pornography. The first expense would imply that a constraint to prevent him from consuming pornography would have negative value to him, but the second expense implies that such a constraint would have positive value. Clearly, researchers need to make use of various models of addiction to properly understand the effects of pornography consumption, and we can assume that the most relevant theoretical research on pornography will make use of addiction theories in the future.
SUMMARY FACTS ON TH EFFECTS OF PORNOGRAPHY USAGE
There isn’t any convincing statistical evidence that consumption of pornography does or does not affect behavior. However, some people do appear to have a strong incentive to prevent themselves from consuming pornography, and to pay more for this prevention than for the pornography itself. This suggests that there may be large personal costs of consumption associated with pornography, and opens up the possibility that it may be optimal for the state to use regulation to limit the distribution and consumption of pornography.
TTHE REGULATION OF PORNOGRAPHY
Between 80% and 90% of the people who consume internet pornography generally consume free content. Thus, if we want to know the effects on consumption of eliminating copyright protections, the most important question is: Will the large number of consumers currently accessing free content still be able to do so after elimination of copyright?
This free content is a combination of legally posted content supported by advertising, legally posted content serving as an advertisement (e.g., samples), illegally posted pay content, and amateur content. Only the first two categories possibly could be negatively affected by elimination of copyright: Illegally posted material will be instantly turned into legally posted material, and amateur material will be posted for the same reasons it already has been. I have not found what portion of free pornography consumption comes from these two sources, but whatever level it is at will be a lower bound for the amount of free pornography consumption that can persist after elimination of copyright.
The revenues for the first two categories primarily will come from end-users, since much of the advertising on pornography sites is from other pornography sites.25 So it remains to find out whether the end-user revenue model can persist after elimination of copyright, whether some other source of revenue can be found, or whether these first two categories of free content will disappear entirely.
A useful way of answering this question is to ask whether there already exists an industry that distributes public domain works and supports itself through its own revenues. The answer is yes. There is money to be made from reworking public domain books and selling them, often over the internet.26 Many major publishers sell large numbers. They are not printing and distributing these works out of charity—the revenues must be greater than the costs. Jane Austen’s Pride and Prejudice long has been in the public domain. At least fifteen editions are currently available as new purchases, including several by major publishing houses, even though the complete text is available for free online. The bestselling Dover thrift edition of three Austen works packaged together has a sales rank of 2,140, and this implies yearly sales of about 3,300 copies.27 It is therefore clear that the fact that Pride and Prejudice is in the public domain has not reduced its availability for consumption whatsoever. In fact, it is currently quite cheap to consume Pride and Prejudice, and it would be much more expensive if it was still under copyright.
How can this be? The answer is that publishing houses can make money on public domain works by distinguishing their product from the other versions currently available. Many editions of Pride and Prejudice contain special annotations and essays to make the text more readable and interesting. Some contain illustrations, or are printed or digitally stored in an especially attractive format. This is likely to be what would happen to the internet pornography industry were copyright to be revoked. Some websites would package and organize the pornographic material in a better way than others. They would make an extra effort to ensure that the digital videos and photographs on their site were free of computer viruses. They would develop interfaces that were easier and more pleasant to use. It is likely that their profits would go down. But there still would be profits to be made from high-quality distribution. The price would likely decline, and the consumption of pornography would either remain constant or increase.
The same cannot be said for production. In the absence of copyright protection, the service that is being profitably sold is efficient distribution, not quality production, since any well-produced product can be taken and distributed by anyone. Thus, there would be little incentive to continue to produce works for profit. If the moral costs of producing pornography are high, then eliminating copyright will reduce the social costs of pornography. However, elimination of copyright will, in the short term at least, either leave constant, or increase, consumption, as the price of consumption decreases. The one possibly good effect of copyright elimination will be that, as decades pass, the lack of new production will make the available material seem dated. Few people now consume the pornographic postcards of the late nineteenth century. Thus, after the changes in tastes that occur over generations, it is possible that elimination of copyright will succeed in reducing consumption of pornography.
AN EASIER WAY TO REDUCE CONSUMPTION
If eliminating copyright protection will not reduce the consumption of pornography, is there another legal change that might do so? It is possible that regulating what information could be transferred by ISPs would be an effective way to reduce internet pornography. At least 80% of internet users nationwide make use of the top twenty-five ISPs,28 and it thus would be relatively simple to prevent large numbers of consumers from accessing internet pornography by regulating the degree to which internet lines can be used to transmit obscene material, and heavily enforcing this regulation for the top one hundred ISPs around the country.
It is unlikely that the vast majority of internet pornography consumers (especially those who only consume free internet pornography) would be willing to risk using a black market ISP just to access pornography. We already know the 80% to 90% of internet pornography consumers who consume free pornography are unwilling to pay rates as low as $10 or $30 per month in order to obtain higherquality pornography from subscription sites. This suggests that they also would be unwilling to pay for a black market ISP just to consume pornography.
THE MORAL BASES FOR LEGAL REGULATION OF PORNOGRAPHY
Gerard V. Bradley
Although we are accustomed to think that pornography is completely “free” and unregulated, it is regulated quite intensively—but many regulations have nothing to do with the lurid nature of the material. It is regulated, under various non-moral descriptions and for diverse, non-moral reasons. A pornographic book is subject to copyright and commercial laws. A pornographic movie theater must conform to fire safety and construction codes. A pornographic stage show must meet legal standards for employment. In some places bordellos are regulated for sanitary and commercial purposes.
I put these sorts of regulations aside. Here I am interested in the legal regulation of pornography as a special sort of printed or visual material that seeks to sexually stimulate the viewer.
Pornography as such is an elusive legal concept. Supreme Court Justice Potter Stewart famously confessed in a 1964 concurrence that he could not define “pornography,” not even the “hard-core” kind. He insisted nonetheless that he “knew it when he saw it.”1 Call this the conceptual vagueness of pornography. But vagueness is not a problem so long as precision is neither needed nor demanded. And for a very long time American law did not demand it. Our laws up to the 1960s typically banned “filthy,” “lewd,” “indecent,” and “immoral” material, and provided no further definition of these terms.2
There was, it is true, more con
sensus about moral norms in those days than there is now. But there was disagreement then, too. There always has been lively disagreement about how far legal restrictions of sexually explicit material should go, lest mature but nonetheless valuable books, magazines, and movies be censored.
The difference between today and back in the day lies as much in the law as it does in the culture. The difference-that-law-has-made arises from an important value choice made by our legal elites, particularly judges and professors, starting about fifty years ago. Before then, the law’s overriding commitment was to protecting the moral character of the weaker among us, including but not limited to minors, against corruption. 3 With that end in view, our law in effect warned any writer or performer who ventured near the casually drawn forbidden zone—demarcated as “filthy” or “lascivious”—that he took his chances.
The thought was this: Someone who flitted so near the flame of lust was probably not doing anyone any genuine good, and he was tempting many people by exposing them to materials they were too morally weak to resist. In the law’s eyes, this writer or performer was not a misunderstood artiste, or a member of an oppressed moral minority. He was a misguided adventurer, even an immoral tempter. He was, from the moral point of view, a misanthrope. Scaring him off the margins of decency in order to help the morally weak, even if doing so meant using “vague” legal terms, served the common good.
Our law started to make a Copernican revolution in 1957, in the leading case of Roth v. United States. It was the first time the Supreme Court sought to provide a concrete definition of obscenity. The Court rejected the common law test for obscenity, derived from the English case Regina v. Hicklin in 1868 that “allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons.”4 In its place, the Court applied a community standards test: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”5
The law’s overriding concern then began to be, and since has surely become, the writer’s or performer’s putative rights and not the consumer’s moral well-being. Roth inverted the law’s traditional moral preference for protecting the character of the easily tempted, even at the expense of censoring material with some genuine literary or social value. It established that “[a]ll ideas having even the slightest redeeming social importance” were fully protected by the First Amendment.6 So long as salacious material was surrounded by some sort of intellectual content it enjoyed constitutional protection. Before long Roth’s thin tether to “social” values gave way to the prevailing emphasis upon the writer’s or performer’s “freedom of expression.”
The countervailing public interest is almost always called “public morality.” The legal regulation of pornography today takes place at the intersection of something called public morality and the emergent colossus freedom of expression. The “freedom of opinion and expression” affirmed in the Universal Declaration of Human Rights is limited in its “exercise” by the “just requirements of morality, public order, and the general welfare.”7 The European Convention for the Protection of Human Rights and Fundamental Freedoms says that “[e]veryone has the right to freedom of expression,” but that this right may be subject to limits derived from “the prevention of disorder or crime” and “the protection of health or morals,” among other reasons.8 The universal right to religious liberty—or “religious expression” if you prefer—affirmed by Vatican II in Dignitatis Humanae, its Declaration on Religious Freedom, is limited by the responsibility of civil authority for the “proper guardianship of public morality.”9 Our Supreme Court has affirmed that freedom of expression is limited by “the right of the Nation and the States to maintain a decent society.”10
But what is this public morality? Its stable definition has been a challenge to our law, but not because it is inherently vague, as is the case with pornography. It instead has been regularly confused with other bases for the legal regulation of pornography, and in particular with arguments from public decency, consent, the combating of injustices, the combating of the particular injustice to children of child pornography, and judicial adherence to rules already laid down.
These bases can be combined into a productive working alliance with public morality, all the better together to serve the common good. At root, though, they are unrelated to public morality, and they cannot do the job that needs to be done all by themselves. Yet they ever threaten totally to eclipse the concept of public morality.
In Part I of this essay I describe these surrogates for public morality as moral bases for regulating pornography. In Part II I take up another basis, not quite moral but not altogether amoral: inherited constitutional doctrine. These two parts reveal this unfortunate fact: American constitutional law does not possess any concept or definition of what’s harmful about pornography—even about the hard-core pornography or “obscenity,” which still enjoys no First Amendment protection. Part III considers more specifically the concept of “public morality,” and argues that it includes what is more commonly called “culture,” the broader patterns of belief and action that constitute our social world. The law has an important but usually secondary role in making this culture a morally healthy influence upon our lives. Part IV is more prescriptive than all of the preceding parts. It contains a legal strategy for morally stigmatizing the transmission and consumption of obscene materials.
I. SURROGATES FOR PUBLIC MORALITY
The first entangling alliance of public morality is with public decency. Public decency laws protect the sensibilities of persons who are involuntarily exposed to acts that should be performed in private. Restricted “indecent” acts include urinating in public, excessive public displays of affection (even by married couples), nude sunbathing, and loud parties. None of these acts is in itself immoral. Some are positively good. None is pornographic in any familiar sense of that term.
Now, it is true that feelings help to clarify what both public decency laws and public morality laws are for. But they are different feelings. Indecency tends to induce revulsion or disgust. Pornography is defined by its tendency to excite lust— sexual arousal apart from any genuine interpersonal act of a sexual kind. Because “indecent” acts performed in private cannot give offense, they should not be regulated to promote public decency. Pornography is a different matter.
The second entangling alliance is with consent. Consent laws protect everyone’s choices and tastes as they bear upon erotic materials. In canonical form, this basis of regulation could be stated as: “The state has constitutional power to protect unwilling adults from being exposed to pornography.” Or, as a reworking of the first entangling alliance: “People should be protected—within limits—against the uninvited intrusion (and consequent disgust) of erotic imagery.”
Thus an “adult emporium” may not be closed by the police as a menace to morals. But the police may and should see to it that the emporium’s pleasures are limited to those, and only to those, adults who really go for that sort of thing. The law may and should require that advertising be discrete, that signage be bland, and that entrances be clearly marked, so that anyone who enters knows what to expect. None of these regulations need presuppose that the act or material at issue is genuinely immoral, or that the experience willing customers seek is harmful to them.
The question about this regulatory authority is not its legitimacy, for every member of the Supreme Court and virtually all of the commentators affirm it. The question is whether it marks the outer limit of state authority to limit pornography. Is the state’s interest in regulating pornography exhausted once it is ascertained that those indulging are, indeed, consenting adults? The Supreme Court seemed to adopt this idea in Stanley v. Georgia, a 1969 case that immunized possession of “obscene” materials in the home, even though “obscene” materials always had been deemed to be altogether outside the First Amendment’s protections.11 Stanley still stands as a valid prec
edent, and I shall have more to say about it in due course. But its inchoate proposal to make consent the limiting principle of state regulation was soon rejected by a Court populated with the nominees of Richard Nixon.12 I say more about that rejection in Part III.
The third entangling alliance with public morality is the everyday warrant that our public authorities possess to combat injustices. Though I think that it is dogmatic to hold ex ante that pornography is, at worst, a “victimless” immorality, it is nonetheless the fashion to treat it just that way. So, when jurists and commentators refer to “injustices” and “pornography” in the same sentence, they mean something other than the injustice of manipulating other people’s passions and corrupting their character for financial gain or to satisfy one’s own passion for exhibitionism.
What today’s legal thinkers mean is illustrated by Justice David Souter’s concurring opinion in Barnes v. Glen Theatre (1991).13 That decision upheld an Indiana law that banned nude bar-room dancing (in the event, in South Bend’s Kitty Kat Lounge). The complaining dancers said that their “erotic message” was stifled by G-strings and pasties; the Court decided that they would have to send their message with some “opaque” covering.
Justice Souter supplied the necessary fifth vote. The decision rested, he said, “not on the possible sufficiency of society’s moral views to justify the limitations at issue, but on the State’s substantial interest in combating the secondary effects of adult entertainment establishments.” These statistically predictable “secondary effects” included “prostitution, sexual assault, and other criminal activity,” all of which the state rightly sought to suppress.14 Though these “secondary” acts are all (more or less) obviously immoral, and though they are all (by some metric) correlated with nude dancing, nothing in Justice Souter’s position implies or entails that nude dancing is itself morally dubious. Indeed, he makes explicit that he does not adopt any such premise.