Harvard Law Professor Frederick Schauer’s “The Boundaries of the First Amendment”; Government Regulates Many Kinds of Speech

Anti-porn activists have typically had to defend themselves against charges that they are carving out partisan exceptions to a constitutional principle whose effectiveness, maybe even sacredness, derives from its neutrality. Justice, it seems, is never more blind than when she is reading Hustler.

However, one might argue that the application of the First Amendment to pornography is itself a partisan move that is subject to revision, not a principle dictated by the Constitution for all time. Closer study reveals that constitutional relevance is selectively applied, for reasons that have more to do with politics and economics than with pure legal theory.

In his article “The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience” in the April 2004 Harvard Law Review, Harvard Law Professor Frederick Schauer asks why legal restriction of some types of speech is recognized as raising constitutional problems, while speech in many other contexts may be heavily regulated without any reference to the First Amendment. (This article is not available on the journal’s website; the citation is 117 Harv. L. Rev. 1765 for those with access to a law library or Westlaw.) From the summary:

Although the First Amendment refers to freedom of “speech,” much speech remains totally untouched by it. Antitrust law, securities regulation, the law of criminal solicitation, and most of the law of evidence, for example, involve legal control of speech lying well beyond the boundaries of the First Amendment’s concern. It is not that such regulation satisfies a higher burden of justification imposed by the First Amendment. Rather, the First Amendment does not even show up in the analysis. The explanation for lack of First Amendment coverage lies not in a theory of free speech or in legal doctrine, but instead in an often serendipitous array of political, cultural, and economic factors determining what makes the First Amendment salient in some instances of speech regulation but not in others. Because the First Amendment’s cultural magnetism attracts a wide variety of claims, nonlegal factors, far more than legal ones, determine which opportunistic claims to First Amendment attention will succeed and which will not. Legal doctrine and free speech theory may explain what is protected within the First Amendment’s boundaries, but the location of the boundaries themselves–the threshold determination of what is a First Amendment case and what is not–is less a doctrinal matter than a political, economic, social, and cultural one.

Schauer observes that “although warnings of the dangers of so-called ‘exceptions’ to the First Amendment are a staple of civil-libertarian rhetoric, even the briefest glimpse at the vast universe of widely accepted content-based restrictions on communication reveals that the speech with which the First Amendment deals is the exception and the speech that may routinely be regulated is the rule.”

For example, the Securities Act of 1933 imposes content-based restrictions on the advertising of investment products, even though “commercial speech” is elsewhere given First Amendment protection. The Sherman Act, the source of our antitrust laws, makes it illegal for corporate rivals to exchange accurate information about their pricing plans. A mob boss can be convicted of criminal solicitation for ordering a hit, although all he did was speak.

Labor law has developed with virtually no First Amendment interference, permitting a host of content-based limitations on picketing, boycotts, collective bargaining, and what unions and management can say during workplace election campaigns. Schauer finds no plausible theoretical way to explain where these constitutional boundaries are drawn:

Theories based on self-government or democratic deliberation have a hard time explaining why (except as mistakes, of course) the doctrine now covers pornography, commercial advertising, and art, inter alia–none of which has much to do with political deliberation or self-governance, except under such an attenuated definition of “political” that the justification’s core loses much of its power. “Search for truth” or “marketplace of ideas” accounts are similarly at a loss to explain the coverage of utterances without much truth value, including self-expression generally and the self-expressive aspects of most art and literature in particular. Indeed, if we were concerned about actually increasing knowledge and exposing error, it is far from clear that we would so easily protect both communication that is largely emotive and communication that is demonstrably factually false. Personal autonomy and self-expression accounts of the First Amendment are also difficult to justify descriptively. For these theories, the inclusion of commercial speech and noncommercial corporate speech is problematic, since it is not clear whose autonomy or self-expression is fostered as a result; equally problematic is the inclusion of plainly harmful speech, for it is not normally thought that rights to autonomy and self-expression extend to the right to injure others.

Not only are existing normative theories substantially narrower in some respects than current doctrine, but in other respects they are also substantially broader. “Distrust of government” theories, for example, cannot explain why that distrust has not been extended to the SEC, the FTC, the FDA, the Justice Department, or judges managing a trial–all of which involve government officials making content-based decisions about speech, and none of which is now covered by the First Amendment. Thus, if there exists a single theory that can explain the First Amendment’s coverage, it has not yet been found. Yet if all of the historically recognized and judicially mentioned normative theories are available–self-expression, individual autonomy, dissent, democratic deliberation, the search for truth, tolerance, checking governmental abuse, and others–then their collective coverage is so great as to be of little help in explaining the existing state of First Amendment terrain. For if every underlying theory of the First Amendment can be conscripted into service to justify either an inclusion or an exclusion, and if the array of such theories is as large and diverse as it actually is, then all of the work is being done not by the theories, but by as-of-yet unarticulated factors…

If we abandon–at least here–the pursuit of a normative theory of inclusion and exclusion, and instead seek description or explanation, our search may be more revealing. So rather than supposing that the domain of the actual First Amendment has been inscribed by its purposes, functions, or philosophical explanations, let us examine the political, social, cultural, historical, psychological, and economic functionings of the First Amendment in society. When we define our task in this way–as exploring the political psychology of the First Amendment–we obtain a better picture of why the First Amendment notices what it actually notices, and perhaps more significantly, why it ignores what it ignores. Accordingly, I will suggest that the coverage of the First Amendment is best understood as the outcome of a competitive struggle among numerous interests for constitutional attention…

What Schauer calls the “magnetism” of the First Amendment is its power as both a positive symbol of American values and a trump card in legal conflicts. It epitomizes how the Bill of Rights has become a substitute Bible for a pluralistic culture.

When Antonio in The Merchant of Venice observes that even ‘the devil can cite Scripture for his purpose,’ he refers not only to the linguistic indeterminacy of the Bible, but also to how its rhetorical authority leads participants in social and political discussions to strive constantly to enlist it in their causes. In important respects, the First Amendment appears to serve a similar function in American society. To an extent unmatched in a world that often views America’s obsession with free speech as reflecting an insensitive neglect of other important conflicting values, the First Amendment, freedom of speech, and freedom of the press provide considerable rhetorical power and argumentative authority.

Publicity concerns make the First Amendment a political battleground. Journalists understandably are particularly vigilant about freedom of the press. Claiming a threat to freedom of speech is therefore an effective way to get sympathetic media coverage of your issue.

To a lesser extent, the judiciary and academia may also be unusually susceptible to free speech arguments because their professions involve expressive activity. With good marketing, some causes may find shelter under the First Amendment umbrella even if less-fashionable constitutional principles, such as federalism or equal protection, are really more relevant.

From the perspective of an interest group using the First Amendment to launch or reinforce its public arguments, the public attention that the First Amendment attracts will likely make a First Amendment claim more appealing to a lawyer and more plausible, or at least less frivolous, to a judge than other legal claims would be. In this respect, using the First Amendment as public rhetorical strategy may both fuel litigation and increase the likelihood of its success. Moreover, by tapping into the media’s and the public’s well-documented interest in conflict, litigation will attract more press and public attention than would raising a nonlitigated or nonconflictual policy question on the same issue involving the same parties. When taken together, therefore, the two phenomena reinforce each other and produce an environment in which the magnetic force of the First Amendment attracts topics and claims that would otherwise be beyond the First Amendment’s boundaries, and in which that litigation then attracts a degree of press, public, and interest-group attention that further contributes to the First Amendment’s magnetic force. This cycle can be expected to bring issues into the First Amendment that previously had been outside its domain, but no equivalent force pushes out those issues that had previously been inside. The consequence is considerable outward pressure on the boundaries of the First Amendment.

In the remainder of the article, Schauer discerns several factors that roughly describe how new areas of speech get brought into the First Amendment’s circle of protection. These include the existence of sympathetic “underdog” litigants, a connection to traditional First Amendment topics, and the absence of an established regulatory scheme for the speech in question. With respect to securities law, for instance, the First Amendment might theoretically apply, but the affected parties have no incentive to mount a constitutional attack on a regulatory system that is working for them.

Schauer notes that the incentives for bringing constitutional claims are not limited to whether the plaintiffs have a cost-effective chance of success, as in private litigation. One’s political goals may be accomplished simply by getting a public opportunity to redefine one’s cause as having First Amendment implications.

One might conclude from Schauer’s article that exposing the arbitrary extra-legal reasons for constitutional protection of pornography, and taking a critical realist approach to constitutional categories in general, should be the opening legal gambit for anti-porn activists in challenging the civil libertarian position.

———————————– (added on 4/20/07)

Professor Schauer gave testimony to Massachusetts legislators on March 16, 1992. This account appears in In Harm’s Way: The Pornography Civil Rights Hearings (p.396).

Speaking on behalf of myself, I find it a constant source of astonishment that a society that so easily and correctly accepts the possibility that a cute drawing of a camel can have such an effect on the number of people who take up smoking, has such difficulty accepting the proposition that endorsing images of rape or other forms of sexual violence can have an effect on the number of people who take up rape. We accept that movies glorifying advertisements for tobacco and alcohol may be part of a social problem. But when the social problem is the massive tolerance of sexual violence against women, we as a society are far less willing to see that what are, in effect advertisements for rape may have a similar effect.

See also:

Catharine MacKinnon: Mass Media Reflexively, Subtly Protect Pornographers

Rebutting ACLU President Nadine Strossen’s Defense of Pornography

Capital Video Attorney Michael Pill: Fickle Defender of Free Speech

Ulysses S. Grant: Matching the Constitution to Present Realities

WMass Librarians: No Sign of Censorship Following Adult-Use Zoning

Letter to Gazette: “Restrictions can be placed on our constitutional rights”

A Response to First Amendment Concerns

25 thoughts on “Harvard Law Professor Frederick Schauer’s “The Boundaries of the First Amendment”; Government Regulates Many Kinds of Speech

  1. I realize that this is a Harvard law professor and stuff, but this seems pretty naive. The Sherman Anti-Trust Act does not prohibit certain speech-acts or expressions of opinion. It prohibits unfair business practices. Similarly, when the Mob Boss orders the hit, it’s not the verbalization, or even the expression of the opinion that the target should die, that is prohibited. What’s prohibited is conspiracy to commit murder. You could say the same words without conspiring, and in those situations, it’s legal to say them. You could be kidding, for exmaple, or performing a skit or play. If you can’t see the difference between the performance of the speech act and the crime, even though they occur at the same time, I don’t know what to tell you.

    If the relevant prohibition on pornography–you keep denying that you want to prohibit pornography, but you also keep posting material like this, that suggests that you want to prohibit pornography–is motivated by the offensiveness of the statement pornography makes, then it is clearly in violation of the first amendment. But if the prohibition is based on the harm that comes to the performers or whoever, then it’s probably not.

    But prohibiting porn probably won’t work. Prohibitions like that tend to drive the relevant industry underground, not stop it. And if the porn industry were driven (further) underground, the abuses visited on the performers would be much worse than they currently are.

    So perhaps the solution would be to make porn *more* legal, not less. On your sidebar, you claim that porn performers who seek redress against their employers are often discouraged by the industry’s “quasi-legal” status. I suggest that this status should be upgraded, and the stigma should be removed. Then porn workers will be more comfortable and more successful fighting for their rights.

    Of course, there will probably be more porn stores then, too. Too bad for you.

  2. For our purposes, the point of the article is that regulating adult businesses through zoning is no big deal, that the government regulates many other kinds of speech, and that hysteria about creeping censorship is unwarranted.

    In Northampton, you are prohibited from “electioneering” too close to the entrances to the polls on election day. This is an obvious restriction on political speech, but I haven’t heard much protest from the citizens. That’s because this law reasonably recognizes competing interests, such as the value of not being harassed or intimidated when you go to vote. Adult-use zoning regulations similarly recognize other values that compete with free speech, such as the people’s desire to live in prosperous communities that are not riddled with crime.

    Porn and the sex industry have stigma primarily because of the volume of suffering involved, the bad fates that await many of its participants (disease, divorce, etc.), the cruel worldview of much of its products, and the abusive relationships between many of the people who work in the industry, such as between pimps and prostitutes. The fact that the industry is quasi-legal is secondary with regard to this stigma.

    We do want to encourage porn and sex industry workers to stand up for their rights. That’s why we relate their stories on the blog, to show them that they are not alone, that their stories are worth listening to, and that people care. We want the government, adult enterprises, and porn consumers to take a greater interest in the welfare of these workers. The stigma belongs with the abusers and the profiteers, not the abused.

  3. I’m sorry, but this seems pretty naive, too. The restriction on “electioneering” is a pretty narrow exception to free speech. People don’t get too upset about it because it’s a prohibition on unduly influencing an election, which is an incredibly central value with respect to the functioning of our political process. But people *did* get pretty upset a couple of years ago when President Bush set up “free speech zones” at his speeches that were away from the main audience. The effect was of an abridgement of free speech in close proximity to the President and the TV cameras, and that *is* a serious violation of the first amendment.

    The use of zoning ordinances to control offensive material *because of its offensiveness* is a *huge deal.* When the government regulates other types of speech *because of its offensiveness* it is also a *huge deal.* When government prohibits certain sorts of actions, independent of how precisely they are performed, even if they are performed via speech acts, it is not such a huge deal. But in those cases, the prohibition isn’t on speech per se, but on, e.g. killing people.

    I don’t buy your diagnosis of the stigma of pornography. I’d like to see some data to back up your assertions, which you present without evidence. I would have imagined that the stigma was the result of the general stigma of all media depicting sexuality and sexual situations that was in place until recently, and whose vestiges are still in place. One need only look at the recent Janet Jackson- and Prince-related Super Bowl controversies to see how stigmatized sexuality still is.

    The fears of creeping censorship may or may not be warranted; it is still yet to be seen. But people have pointed out here and elsewhere that Wee Ping, which has been a goodfaith member of the community for years, may be in violation of the Northampton Adult Use Ordinance as it is currently written. If that’s the case, then the fears of creeping censorship are both warranted and realized. It would be awful if a harmless, goodfaith member of the community were forced to alter its business plan so as to comply with the new ordinance; it would be even worse if the City were to begin to enforce its ordinances in an inconsistent manner.

  4. Regulating adult enterprises is not a bigger deal than regulating union activity, business advertising, or political speech on election day, but those who defend the porn merchants certainly act as if it is.

    Adult enterprises are not being regulated because of the offensiveness of their speech. They are being regulated due to the secondary effects they frequently impose on their surroundings. Physical effects, not speech, justifies the regulations.

    Any law can be abused. I have confidence that the people of Northampton, with due deliberation, will find a good balance of interests over time. As we have said before, it is wrong and elitist to believe the people can’t be trusted to make good decisions in this area. Librarians in Western Massachusetts say they find no signs of creeping censorship stemming from adult-use zoning in their locales.

    An excellent example of some people wrongfully trying to recast stigma from suffering as stigma from mere legality is seen in incest porn. Stories in incest fiction have been seen to suggest that the parties involved would be happy but for society’s disapproval. On hearing accounts from actual incest and child sexual abuse survivors, it becomes clear that social disapproval of child molestation is well earned from the great suffering involved. To legalize child molestation would be a catastrophe.

  5. that’s all fine and good but i noticed that you didn’t have anything to say regarding the very last paragraph of paddy’s response.he makes a VERY good point in the last part regarding existing businesses,but once again you fail to address that issue.

  6. I’m sorry, but I still think you’re being very naive. If, when you talk about “regulating” adult enterprises, you mean ensuring that adult work environments are safe, that adult workers have health insurance and other protections, and are not put in any unnecessary danger, you’re right: it’s not a bigger deal than regulating other types of enterprise.

    But if you mean using zoning ordinances to relegate it to out-of-the-way parts of town, away from your house, because you find it or its message offensive, it *is* a *very big deal.* I think it’s very important to distinguish between the two things.

    In spite of what the zoning ordinance itself has to say about why it was passed, the fact that your organization lobbied so heavily in its favor, and your organization is obviously motivated by how offended you are by it and its message, suggests that it was passed at least in part as a result of the offensiveness of porn. That makes it a *huge* deal.

    I don’t know why you mention the obvious fact that any law can be abused. The situation I am talking about is one in which the law would be *correctly applied,* not abused. I was not making the “elitist” suggestion that the people of this city will be unable to find the correct balance. I was making the unelitist suggestion that we have not found the correct balance as of right now.

    I am not sure why you regard local librarians as the final word on creeping censorship. I think that they would be great people to ask about certain kinds of censorship: they would certainly know if they had been asked not to carry certain books, magazines, or movies. But I’m having trouble seeing why they should be regarded as experts about adult-use ordinances inapropriately affecting things like lingerie shops.

    Finally, I have no idea why you mention the stigma surrounding incest porn. It seems to me that inces and incest porn are rightly stigmatized. It doesn’t seem to me that the “efforts” of incest pornographers to destigmatize inces have been effective.

    The paragraph is a non sequitur. I was suggesting that “regluar,” “mainstream” porn should be destigmatized, and its quasi-legal status should be upgraded, so that porn industry workers would be more able to fight for their rights to safe working conditions, fair contracts, health regulations, and health insurance, among other things. I am also inclined to think that prostitution should be legalized for the same reasons. I am not inclined to think that incest porn should be destigmatized. I don’t see any relationship between the destigmatization of the “regular” porn industry and that of incest porn.

  7. Hi folks – I think Paddy made very good points you would be better off to heed.

    If offensiveness is not a primary motivation, but secondary effects are, then the laws should be tailored to directly address the secondary effects, and the irresponsible operators, rather than the content – that’s what I’ve been advocating. But that’s NOT what you primarily advocate, which is content based restrictions not subject to the strict scrutiny standard of judicial review.

    (Again for the record, just because the supreme court says the anti-porn zoning laws are not content based, does not it was being honest in its anaylsis – a few of the justices are not acknowledging that such zoning laws are content based.)

    I’ve not had a chance to read the text of this law article in full, but you are misleading the public into believing that the courts do not treat expression with political and social viewpoints, such as porn, differently from purely commercial speech, such as securities laws to prevent of fraud. To advance the idea that all speech is regulated, which it is, without pointing out that the high bar of strict scrutiny applies to content based restrictions with respect to political and social speech, is deceptive, in my opinion.

    Hustler may very well be sexist, racist, etc. to you in the points of view that it expresses, But, as a result, these are clearly political and social points of view, albeit unpopular and objectionable to you and many others. Therefore, your position that you are not advocating censorship by advocating zoning laws which remove such material from easy access in hardcopy form by pedestrians downtown, and not the non-pornographic works with political points of view, is misleading – not educating.

  8. Wee Ping’s storefront display does not show people in sexual conduct, so it complies with Northampton’s signage ordinance. The same cannot be said for the Victoria’s Secret standard asserted by Capital Video.

    Enforcement of the law necessarily relies on the wise judgment of city officials. Any law can be abused, but there are many checks and balances. If one city official abuses their authority, they have to answer to other officials, the courts, the media, and ultimately the people.

    If Northampton’s signage law does not get the result the people want, they can change it. Northampton has not committed itself irrevocably to one path or another.

  9. This blog has amply demonstrated why most of today’s porn, as free from legal fetters as it has ever been in America, deserves society’s disapproval. Porn sends clear messages that women are meat, that sex has little to do with love, that disease is not a concern, that pregnancy is not a concern, that cheating is not a concern, that ‘no’ should be ignored, that women enjoy pain, and that rape and abuse are harmless, pleasurable activities. These problems have nothing to do with the legal status of the industry. In fact, the state of California, home of many porn studios, appears to have less interest in regulating the porn industry than others of comparable risk.

    It is not correct to separate out incest porn from the rest. Capital Video sells incest fiction today, legally, right out of its retail stores. Movies like “Amateur Initiation 29”, “Bubble Gum Virgins”, “Early Entries
    #4”, “Forbidden Cherries”, “Home Schooled #3” and “It’s a Young Girls
    Thing”, all on sale at Capital Video’s websites, clearly aim to blur the distiction between sex with adults and sex with children. The path of porn addiction often takes its victim through adult porn into more extreme forms, such as child porn. We have also posted evidence of how abusers use adult porn to facilitate their abuse of children.

    In short, you will have a hard time disentangling the issue of porn from the issue of child sexual abuse, and that’s partly because the pornographers encourage and cater to a taste for young people. If that is part of its stigma, that’s as it should be. Let’s recall that 25% of American girls suffer sexual abuse at some point. This is an enormous problem that porn makes worse.

    We can disapprove of porn and porn merchants while retaining sympathy for porn workers. The common theme is sticking up for those who have little power, whether it be the actors, victims of abuse, or residents who happen to live next to an adult enterprise. To ignore the power differences between the players in this drama is the true naivete.

    Freedom of speech is meaningful only if you have a voice and are heard. Pornographers, a $56 billion industry, have plenty of voice and cultural influence. We are trying to bring a better balance to the public debate.

    Adult-use zoning has been practiced for years all over the country, such as in Boston or Los Angeles, without signs of spreading censorship. The people have proven they can use this legislation responsibly.

  10. Peter, we have been waiting for months, and are still interested to see from you, a draft of specific legislation that will bring about the results you desire, along with any evidence that this kind of legislation has been put into practice elsewhere with good results. Adult-use zoning appears to be the best option citizens have right now to contain secondary effects, but that doesn’t mean something better can’t be developed.

    Secondary effects are real, well-documented, and a sufficient justification for adult-use zoning. Crime and economic blight are objective problems that you can combat in law without having a general crackdown on a certain category of speech. For example, adult-use zoning has no impact on the type of material you may view online or receive through the mail.

    Proponents of zoning may have larger concerns about porn, but these are not relevant from a court’s point of view. Even Barney Frank supports adult-use zoning.

    That said, we do take free speech seriously and do not want to see increased state censorship in this area. Ironically, if any kind of speech has been suppressed by the media in recent years, it’s anti-porn material. We are all for having a level playing field where all sides of the issue can be laid out in detail for the people to judge. The Internet can serve well for this purpose.

  11. Since motivations are important to you, let’s explore the motivations of our opposition.

    Is pornographer Kenneth Guarino motivated by respect for the law? Unlikely. He’s a convicted criminal and had deep ties to a capo in the Gambino family.

    Is Capital Video lawyer Michael Pill motivated by his loyalty to the First Amendment? Unlikely. His respect for free speech shifts depending on who’s paying him.

    We assert their primary motivation is to make money. If other people suffer for it, that’s too bad. In their world, the fate of the weak is to be exploited.

    Peter Brooks, of TalkBackNorthampton, has stated that an important motivation for him is to not have to travel an extra mile or two to buy porn from a retail store.

    Some pornographers, such as Lizzie Borden, appear to be motivated by a desire to exert power over others, to be the abuser rather than the abused.

    Some porn viewers are motivated by a desire to receive permission for abusing and exploiting others, to be absolved of any guilt they might feel for rape or child molestation.

    Our motivations are to promote healthy communities and healthy sexuality, while keeping respect for the First Amendment. We’re happy to stack up our motivations against those of the opposition any day.

  12. Since you have such a fine track record with regards to discerning people’s motivations, I’m not surprised that you see everyone else’s motivations as somehow tainted and beneath your “pure” motivations. You’ve stated as much in the past when you’ve said that even though you’ve distributed pornography to every registered voter in Northampton and provided content for adult websites and generally done a good job of publicizing the coming of the capital video store to Northampton, you’re NOT doing anything wrong because your motives are pure. And your belief in your own motives means, I guess, that you never have to apologize to anyone for anything you’ve done.

    That said, I find it confusing that you denigrate the owners of Capital Video for being motivated by money when your interest in this certainly has some financial basis. Not only do you solicit money on your website, but you are out to protect your own property values, which you believe will be damaged by the presence of an adult store a half-mile down the road. I guess admitting that, though, would make you seem less pure?

  13. Yes, intention matters. When we document our points with pornography, we place it in a critical context so people can understand how porn works. This is completely different from the approach of the porn merchants, who want you to uncritically accept false fantasies that you can have sex without risk, obligation, or concern for the welfare of other people.

    Unlike Capital Video, we are not trying to make a profit. We are trying to preserve what we have. The value of our property is not in itself a big concern for us because we don’t plan to sell our home anytime soon. However, property values are partly a sign of how desirable a neighborhood is to live in. If the values in our neighborhood generally fall, that suggests our neighborhood deteriorated.

    Let’s consider some of the better reasons a person might defend porn. Some might support porn because they are concerned that an attack on porn will be paired with, sooner or later, an attack on womens’ liberation or an attack on gay rights. Had you made this point, I would have agreed that this is a valid concern. We would reply that we criticise today’s porn for its exploitative vision of human relations, and the harm it causes the performers, and the harm of secondary effects, not because we believe that ‘heteronormative’ sex is the only proper kind of sex or that women should only be demure and submissive wives.

  14. I think it’s important to separate certain kinds of “regulation” separate from certain other kinds of regulation. Regulations that prevent unfair business practices and unfair treatment of employees are one thing; regulations that stigmatize and ostracize certain kinds of business are another.

    Businesses tend to mistreat their employees when they can get away with it. This is as true for the pornography industry as it is for the meatpacking industry. That’s why I support the destigmatization of porn. I think that once it is destigmatized and publicized, reforms will be passed that will protect the porn workers. That’s good for everyone.

    I don’t support the sort of zoning ordinance you advocate. I think such ordinances are counterproductive. They don’t help the actual workers, they don’t prevent anyone from actually *using* porn, and they serve t reinforce the stigma surrounding it. I think that’s the wrong direction.

    I have no idea why you think that being heard is a necessary condition for the meaningfulness of freedom of speech. I thought that freedom of speech was itself a necessary condition for being heard. I think you have it backwards.

    In my earlier comments, I said I thought that the reasons why the zoning ordinance was passed were relevant. I don’t think I suggested, and didn’t intend to suggest, that Kenneth Guarino’s *motivations* mattered. They don’t, and your little “purity-off” just obscures the real first-amendment related issues.

    Finally, I can’t understand why you think that the “objectionable” Victoria’s Secret display would violate the signage ordinance if Wee Ping’s display would not. They seem pretty comparable to me.

  15. Porn has been losing its stigma in America for over 50 years. It is as popular, widespread and “cool” as it ever was. America has been doing things ‘your way’ for some time, and I can’t say I’m impressed with most of the results. Certainly the experience in several other countries undercuts the notion that the wider acceptance of porn will reduce sex crimes.

    I won’t blame porn for all of our ills, but our country today has major problems in the area of sexuality and relationships. Rates of divorce are persistently high, with troubling impacts on children. Rates of sexually transmitted disease are “a major public health challenge”. About one-half of all pregnancies are unintended. Rates of domestic violence and child sexual abuse are high.

    Even if you don’t accept that porn is a cause of some of these problems, it’s clearly supportive of some deeply unskillful behavior, such as unsafe sex, infidelity, and incest. It portrays sexuality in a way that generally ignores the problems and risks or even makes fun of them.

    When porn removes the stigma from harmful activities like rape, violence and child sexual abuse, it can embolden the perpetrators to act and discourage the victims from protecting themselves or seeking help. The victims keep being told, ‘This is normal and should be pleasurable for you, just like in the movie/magazine.’ Domestic violence and sex crimes go unreported on a large scale. In some cases this may stem from the stigma surrounding the crime, but increasingly I would argue that these crimes go unreported because the victims fear they won’t be taken seriously, or told that they, not the perpetrators, are the ones with the sexual problems (they are ‘frigid’, ‘uptight’). Porn, with its rape-supportive myths, gives them good reason to have this fear.

    The goal of adult-use zoning ordinances is to protect residents and non-porn businesses from secondary effects. They do this effectively and that’s why communities have gone to the trouble to enact them for several decades now. I agree they are unlikely to reduce overall porn consumption much or protect porn workers. That’s what awareness-raising and workplace regulation are for.

    As for the window display, let’s see what Capital Video actually puts up at 135 King Street.

  16. I appreciate that there is a long-standing romantic notion that if we can only dispense with all ‘unnatural’ social restraints, a sexual utopia will envelop the world. Unfortunately, the reality is when you dispense with all restraints, the strong come to oppress the weak. This is exactly what we’re witnessing between porn producers and performers, between porn shops and communities, and between porn viewers and victims.

    The wisdom lies in deciding which social restraints to loosen, which to leave alone, and which to strengthen, not in abandoning them altogether.

  17. Folks, I never promised you I would present specific legislation, so your statement “we have been waiting…” is duplicitous. But, I have made you aware before of posts to my blog where I made specific legislative suggestions for everyone and the City to consider. See, e.g., http://talkbacknorthampton.blogspot.com/2006/10/talkbacknorthampton-presents-real.html. The mere fact that I have not posted model ordinances does not prove that alternatives to prior restraint, content based restrictions, such as the zoning measures NPN advocates, do not exist. To the contrary, there are content neutral laws all across America which address issues of crime, litter, safety, blight (such as design requirements to upscale an area) etc. – potential harmful secondary effects associated with porn shops and many other forms of entertainment, such as bars and hip-hop clubs – they need only be enforced. So, with respect to your position that I have failed to respond to your claim that there are no alternatives to prior restraint, content based restrictions, I have and there are.

    Barney Frank? As a gay man known for sexual harassment who now needs as much broad based support as possible to win the battle for gay marriage, among other things, I suspect the reasons for this position is that he can ill afford not to support anti-porn zoning measures, which are popular, as you know.

    Media suppression of anti-porn points of view? Upon reflection, it shouldn’t be surprising that people in the media suppress all sorts of facts and points of view all the time to present how, in their judgment, they see the story, and, given the special or time constraints, they have to make choices.

    The internet serves the cause of free speech? It can, but not necessarily. Chinese censors focus upon porn and political speech on the internet. It’s no mere coincidence. Porn, albeit entertaining, is also powerful political and social expression with messages which probably threaten core tenets of Chinese society; it certainly threatens the core tenets of our Judeo-Christian and political correct society. A picture is worth a thousand words. So, not surprisingly federal, state and local legislators often introduce legislation to restrict or inhibit access to sexually explicit materials, particularly by children. Heaven forbid they get the notion that casual sex is a social good, like bonobo monkeys, one of the most peaceful primates on earth, if not the most peaceful.

    So, as NPN “[does] take free speech seriously and [does] not want to see increased state censorship in this area” and who believe “[t]he Internet can serve well for this purpose,” will you now state for the record that access to sexually explicit materials a/k/a porn on the internet (by adults at least) should not be inhibited in any form or manner greater than any other political and social commentary?

  18. We’ve said before and we’ll say again that we do not favor the extension of state censorship beyond its current configuration. If you say that adult-use zoning is impermissible censorship, obviously the US Supreme Court thinks you’re wrong.

    Human society is a little more complex than that of the bonobos. For example, do the bonobos raise their children at home for 18 years and then maybe spend tens of thousands of dollars to send them to college? In light of the long-term responsibilities that quality human relationships entail, please elaborate on how casual sex is a social good, particularly the promiscuity and infidelity promoted by films sold by Capital Video and elsewhere. Be sure to address the arguments made in The Atlantic article, “Dan Quayle Was Right”, on how family instability and breakup leave lasting harm on children. I’d also like to hear you respond to the unhappy spouses of porn addicts. Is it really possible that they are all just ‘uptight’, or are they rightly distressed that their spouses divert their sexual energies to other people? Then address America’s high rates of unintended pregnancy and STDs.

    Even Carol Queen, sex-positive heroine, says, “Perhaps in the next 20 years the porn film industry will stop being a
    poster child of heterosexual [HIV] transmission and become part of the
    solution.” Porn richly deserves a ton of criticism, far more than you’ll find in most media outlets.

    We did the legwork and gave Northampton’s legislators specific adult-use zoning legislation to consider, along with the rationales and evidence to support it. If you don’t do the same, it’s unreasonable for you to expect them to take you seriously. They have a lot on their plate.

  19. It is true that some secondary effects, such as crime, could be at least partially addressed without adult-use zoning or viewing booth health regulations. However, adult enterprises have been known to generate such a volume of secondary effects that the police are overwhelmed and ineffective, as in St. Paul. Some secondary effects, such as reduced property values, are hard to address without physically keeping adult enterprises away from homes.

    It would be nice if we could trust adult enterprises to look out for the interests of their host communities. The record and the attitude of many porn merchants show that we can’t. Zoning laws are needed.

    Clearly many cities and towns have found it necessary to support and enact adult-use zoning, even generally liberal ones such as Hollywood, Boston or New York. It’s not the offensiveness of the speech that justifies these laws. Lots of people find lots of different speech offensive. It’s the physical effects that physical adult establishments frequently have on their surroundings that justifies their specific regulation.

  20. You say, “However, adult enterprises have been known to generate such a volume of secondary effects that the police are overwhelmed and ineffective…” So, I’ll ask again: are these effects inevitable? Are they permanent? Why hasn’t Northampton experienced them?

  21. It’s amazing that you can explain how human society is amazingly complex and then promote such a simplistic view of adult businesses and their potential impact on their communities.

  22. Clearly many cities and towns have experienced severe and long-lasting effects from adult enterprises. That may not indicate inevitability, but it does suggest a high degree of risk that justifies regulation.

    You appear to be referring to Northampton’s experience with Oh My and Pride and Joy. These are two locally-owned stores of less than 1,000 square feet each and no viewing booths. Capital Video, by contrast, is a distant chain that proposed to build a 6,000+ square foot porn shop complete with 20 viewing booths. These and other differences are obvious.

  23. the strong come to oppress the weak

    here’s the clearest statement of A) why you fight (the weak always look for ways to punk out of a fight, often by hiding behind a bigger dog, in this case, the government) and B) why you won’t win in the long run.

    So glad I moved to a real cities where malcontents can’t pass carpet-bagger laws that do nothing but negatively impact local business. Good luck with that. I’m sure you’re winning broad respect in the community.

  24. If it’s negative impacts on local business that you’re concerned about, Capital Video’s Springfield porn shop provides an excellent example of this in action. Urban Compass has written some fine articles about how this shop is holding its neighborhood back, in particular by discouraging grocery stores from moving in.

    It’s because of callous, selfish businesses like these that we need regulations like adult-use zoning. Anarchic capitalism is clearly not delivering the best result for the community.

    Government action is certainly not our only line of approach. We advocate for consumer pressure on porn profiteers and generally publicize information about the harm of porn and the realities of the porn industry. We’re doing a poor job of ‘hiding’ behind anything–our website serves more unique US visitors than the website of the Daily Hampshire Gazette. If there’s something else we should consider doing, please let us know.

    We will ‘win’ in the long run because the people’s desire for good old truth, justice and compassion never wholly goes away. The early years of the anti-slavery movement looked pretty dark, too.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.