A Response to First Amendment Concerns

We would like to highlight an exchange of comments we had on 9/20 with “AC”. The points raised are substantially similar to those that appear in a 9/23 Gazette letter to the editor submitted by Peter Brooks.

AC wrote:

Your point of view, Nopornnorthampton, may be right in many respects. But pornographic material does make a social statement that sex, even “uncommitted” and so-called “deviant” sex, can be and is good for us and should be enjoyed without guilt and shame by those who wish to engage in it. Disagree with this point of view as you wish, but you should not be entitled to claim the right to deny it first amendment protection equal to yours.

You state that you would not banish erotica, essentially, sexually explicit materials depicting romantic love between committed couples. But one person’s version of acceptable erotic is another person’s porn. Ever heard of the religious right? … One should be able to browse the “erotica” of their choice in hard copy form as readily as any other type of material offered in hard copy form downtown, particularly because for many of us living downtown, the usual mode of transportation is by foot.

While I am not be interested in 90% of what Capital Video offers, the proposed changes to the zoning law may effectively zone out of our neighborhood the stores most likely to carry material many of us consider to be desirable “erotica.” Be careful, Nopornnorthampton, least you throw out the baby – our freedom – with the “dirty” bath water that comes with it. Your freedom is next.

And obstructing access to pornographic material, by zoning it to the outskirts of town is, as a practical matter, actual and real censorship. If the subject matter of the material was religious or ideological, no one would seriously contend that zoning it to the outskirts of town was anything but unlawful censorship. So, stop continuing to insult us by claiming that it is not censorship! It is.

And frankly, more harm has been done to, and continues to be committed against, women and children by and in the name of religion and ideology than all the porn put together ever did or does.

Further, the revolting and degrading nature of the material for many does not justify its banishment. Gay erotica is degrading, revolting and just plain sick to many, if not most, heterosexual men, but would you dare ban gay erotica in this town? Of course not. The truth is that usually when people justify banishment of pornography on grounds of protecting children or women, they are merely protecting themselves from embarrassment or the shame they feel about sex.

To be sure, I’d rather have King Street improved, so what about the secondary effects upon the quality of life that porn and erotica shop allegedly cause? Which comes first? The porn or erotica shops that are banned to undesirable areas by zoning laws, such as the zoning law proposed here, or the porn and erotica?

Instead, to upscale our King Street neighborhood, let’s work together on zoning requirements that would achieve that goal without infringing upon free speech. E.g., Signage and storefront requirements. So what say you, Nopornnorthampton?

We replied:

Thank you for your thoughtful comments. Freedom of speech is certainly an important value to us and we have given its protection a great deal of thought.

Many of your arguments, such as that any restriction of speech will put us on a slippery slope to losing our freedoms, have been addressed in our FAQ (left-hand column). Our laws represent compromises between competing values. In fact, most laws can be viewed as infringements on our freedoms. We accept them because people are imperfect and we’re willing to give up some freedom for order and safety. The exact point of balance is a continual negotiation. Northampton is a highly educated town. 25% of the populace has graduate degrees. We have little concern that the people will support excessive restrictions on speech. But even if laws are passed now that people find later to be too restrictive, the people can loosen them down the road. The debate is never truly over.

With respect to freedom of speech vs. the risk of secondary impacts from a porn shop, we say the balance has tilted too far in favor of a blind privileging of this freedom at the expense of other important values, such as compassion for the people who have to live next to a porn shop. Many US courts agree with us, and they uphold reasonable zoning regulations on adult uses. The risk of real-world harms of a porn shop, in the forms of crime, blight and harassment of passersby, is real, well-documented, and the people have a right to ask porn merchants to compromise.

While I concede some of our suggestions will make access to certain adult businesses a bit less convenient, this is not censorship. Pornographic material will still be widely available, particularly for anyone who has cable TV, a  satellite dish, or access to the Internet. We don’t advocate the establishment of any censorship board. No one will be arrested for consuming currently legal forms of porn.

In the realm of persuasion, we do feel it’s fair to ask porn consumers to keep in mind the potentially harmful effects of porn on their personal relationships and the conditions under which porn workers work. Our hope is that people will voluntarily reduce their consumption of porn, and that businesspeople will decline to make money from suffering. As for distinguishing between porn and erotica, we suggest some differences in our left-hand sidebar.

It’s true that some religions and ideologies may have harmful effects, but it’s unfair to tar them all with the same brush. For this aspect of your argument to be meaningful, you would need to identify a specific ideology and demonstrate with facts how it was as harmful as porn. We address other aspects of this issue here.

I’m not quite sure what you mean by “storefront requirements”, but if it’s similar to the city’s new proposal to limit the size of adult businesses when they are near homes and schools, that is indeed an interesting approach that we look forward to studying closely in the coming days. Our instinct would be that small, local businesses would be generally more responsive to citizen concerns than say, a large chain headquarted in Cranston, Rhode Island.

4 thoughts on “A Response to First Amendment Concerns

  1. I have one comment when you say that you are not trying to censor adult material.When you limit the size of the store,you are limiting what the retailer can sell.You are basically telling the retailer what he can or can not sell because of the size limitations put on the business.Is that not a form of censorship?? And it seems to me that from what you are saying,is that it’s fine for the small local adult businesses to profit but not a larger retailer that wants to move into town.Is that not favoritism on your behalf?? Or at the very least,anti business on your part?? Also,on another note,your concern about STDs in the adult movie business,albeit a true concern,is a little misdirecting.All major,adult movie studios require that ALL of the actors/actresses be thoroughly tested for ALL STDs every 30 days.There for the risks of any of the actors/actresses getting an STD are very slim.The testing is very well regulated.

  2. Your argument requires someone to believe that regulating something is equivalent to banning it. We disagree. The government regulates many
    activities. It regulates the gasoline you can put in your car. Does
    that mean it really wants to ban gasoline or the act of driving? It
    regulates the disposal of toxic waste. Does that mean it wants to ban
    toxic waste or all the activities that produce it? It regulates the
    time, place and manner in which businesses may serve alcohol. Does that
    mean it wants to ban drinking?

    Censorship to us means a board of censors. That certain speech will be flatly illegal. We are not advocating this. We are advocating for reasonable regulations on adult businesses to mitigate their well-known secondary effects on their surroundings. These effects are not speech, but physical impacts like crime and blight. The people have a right to ask porn merchants to compromise on this.

    King Street already has limits on the size of certain businesses. I believe certain areas have a limit of 10,000 square feet of enclosed retail space to encourage smaller stores over “big box retailers”. The proposed new adult-use size and location regulations appear to us to fall into this category of trying to realize a certain “Northampton-like” vision for King Street (safe, pedestrian-friendly, human-scaled, “charming”, etc.) Sounds to me like a reasonable goal for the city to have.

    We have already long discussed how opposing a large porn shop at 135 King Street is pro-business for everyone else around it.

    As for your assertion that the porn business is conscientious about protecting its workers from STDs, would you care to provide some documentation about compliance? My impression from Martin Amis’s 2001 report for the Guardian Unlimited was that compliance wasn’t all that great:

    “I have herpes,” said Chloe as she drove me to a smoker-friendly bar. “After you’ve been in
    this business for a while, you have herpes. Everyone has herpes. On the
    set sometimes you’ll say to a guy, ‘What’s this?’ And he’ll say, ‘What?
    That? It’s a fuck sore.’ And it may well be a fuck sore, what with all
    the traffic. But it’s more likely to be a herpes sore, and that guy
    shouldn’t be working. My movies are all-condom, but condoms won’t
    protect you from herpes. They don’t cover the base. Sometimes when
    you’re doing girl-girl you’ll say, ‘Honey, I think you should go and
    see someone.’ It can be a very stinky scene down there. I’ll send her
    to a porno-friendly doctor (the others treat you like shit) and she’ll
    come out holding her Flagyll prescription with multiple refills.”

  3. The Adult Industry Medical Health Care Foundation certainly appears to be a praiseworthy endeavor, but I’m having a hard time finding data on this site about how many porn workers actually have diseases, or how many comply with the recommended testing and treatment regimens.

    I’m concerned to see a reference in the foundation’s Frequently Asked Questions (PDF) to “non-condom players”. It would seem to me that having sex with lots of people without a condom is a high-risk activity.

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