The Argument From Pornography

The arguments against the federal legalization of prostitution can be generalized into two distinct but complementary classes; those that seek to establish a causal connection between it and some undesirable consequence or another, and those that simply contend in various ways that personal ethical objections to it are sufficient for prohibition. As intuitive as they might initially appear, however, neither class should be convincing to anyone with more than a passing interest in sensible democracy.

Every argument from the first class can be classified as possibly dubious and certainly vacuous, regardless of its specific content. Some argue that prostitution serves as an impetus to slavery, some argue that it promotes criminal behavior, and some argue that it leads to a greater incidence of sexually-transmitted infections, but even if these are true, not only has prohibition not effectively solved the problem, in removing prostitution from under the aegis of regulation it may have actually exacerbated it. (More sophisticated opponents respond by smuggling into the argument even subtler concepts like wage slavery and familial dysfunction, but those moves in this class just continue to get progressively slipperier.)

The arguments of the second class are the far more dangerous, in any case, because rather than present neat, falsifiable claims about consequences, they instead rely on cherry-picked abstractions and loaded emotional appeals. Our natural (and probably correct) intuitions that prostitution is demeaning to women or that it is guilty of degenerating sexual culture can lead us to favor prohibitions of a categorical sort, even when such action is ultimately self-defeating. (We find ourselves in the same kind of conundrum when justifying silencing obnoxious groups like the Klan and the Westboro Baptist Church.) Some of the arguments in this class can be quite superficially compelling, too. For instance, it seems at least plausible that even if the practice of prostitution is not itself immediately assumed to be immoral in some objective sense, its attraction is due primarily to its taboo, and it thus can be taken as a kind of antisocial deviance. This is not sufficient cause for prohibition, but it's certainly suggestive of it, and it frames the grounds on which the opponents must in turn frame the issue: the law doesn't track the precepts of morality, it tracks the norms of pragmatism.

But the argument against legalization fails even on pragmatic grounds, because it suffers an inconvenient counterexample: all the relevant problems with regulated prostitution arise in identical form during the creation of pornography, which similarly commodifies sex and raises similar regulatory concerns but is able to take sanctuary in the First Amendment. Outside of this consideration (and apparently, according to California v. Freeman, the arcana of the payment scheme), there is no legitimate distinction between them, and thus, a opponent of prostitution is left in the awkward position of having to explain why commodified sex prearranged for broadcast should somehow be endowed with a legal permissibility denied to ordinary prostitution. Legal pornography more than just necessitates legal prostitution—it analytically entails it. The opponents got this right—and, I concede, they have from the beginning—but unfortunately for them, we can't sensibly ban pornography.

You might have noticed, I omitted an old standard; perhaps its merely a matter of semantic squeamishness, but it seems crass to label a crime “victimless” when at every commission, there are at least two victims. Does this change our intuitions about the subject? It shouldn't. Rather, it ought to prompt us to realize that as usual, we've stressed the trivial and left the profound unanswered; rather than ask “How do we fight prostitution?” we ought to have been asking “Why has there emerged a market for victims in the first place?"

This Year's Parking Garage

When the Senate’s Privilege Fee Committee yanked the pin from this year’s most explosive piece of legislation and forwarded it to the general Senate for approval, it didn’t seem, contrary to their suggestions, as if they were prepared.

It’s not believable that this committee could have thought they didn’t have any reason to prepare a press release; without some kind explanation, this maneuver couldn’t possibly be construed as anything other than a phase out, regardless of whether the athletic department ultimately rescued the abandoned marching band. It’s not believable that they were honestly surprised when the band, the student body and the media at-large didn’t make the same assumptions they did. And it’s least believable of all that the massive controversy this committee manufactured was actually a deliberate method of raising consciousness for the band. This entire situation was a disaster from beginning to end, and they didn’t mean for any of it to happen.

But in spite of my own loyalties and in spite of all this unnecessary tumult, I still have to commit a certain amount of sympathy to our senators: they were then and continue now to be only students trying earnestly to do their jobs, and they continue to not be a single monolithic unit. So I will assume–charitably and perhaps wrongly–that the rest of the Senate had nothing to with the legislation. And furthermore, the band’s victory was swift and absolute; this committee’s intention, regardless of whether they theoretically continue to maintain influence, is no longer of any relevance. (Nor, for that matter, are the marching band’s hurt feelings.) The administration has spoken: at least $140,000 per year is secure for the foreseeable future, and the possibility remains open for positive changes in funding. If this is our principal concern, then the emails should have stopped. But they haven’t. And why not?

Because the war being fought the arts in general is much more important than this proxy, and it raises a larger and more interesting question: how exactly does one explain the importance of the arts to people to whom it isn’t self-evident? The burden seems to be on the artist to justify his pursuit, and this furthermore seems to be reasonable! “Leave the athletic department out of it,” some more radical critics assert, “and just find your own funding. Show me the money.”

It’s an onerous problem, and it’s one that the Facebook coalition of ten thousand has yet to settle. Other than citing the obvious logistical problems, the common response to this objection has been the following: if we exclude the band from funding, we can’t very well include similar programs like Student Publications, can we? The Reductio ad absurdum works until the interlocutor either simply agrees to cut both, or argues that only the band’s funding should be cut, and for some unique reason. The first–the conservative, categorical objection–is actually somewhat easier to handle: while many might see a reason to deny funding to the band specifically, most don’t want to see the fee abolished completely. The second, however, is trickier: it isn’t difficult to demonstrate the need for something like a daily newspaper or student health services, but to what can one appeal to demonstrate the importance of music and the arts? “Music makes kids smarter,” we retort. “It’s in the data.” “Probably,” they return immediately, “but you’ve reversed the causality. I bet you wanted to distribute the Baby Mozart cassettes, too.” Around and around, we go.

This is the battle we should wish to fight, and this is the battle worth fighting. But how? How do we show them the money? If someone has an answer, at least ten thousand are listening.