Consenting Adults and False Dilemmas:
Libertarian Arguments and the ‘War on Porn”

Libertarians — By on April 17, 2004 at 1:30 am

I’ve always been impressed by the uncanny ability many libertarians have in spotting flaws in logic and reasoning. Whether the arguments come from the Right or the Left, the libertarian critique is often intriguingly rational, even if not always convincing. Unfortunately, they often fail to use this particular gift when evaluating their own ideological conclusions.
Take, for example, the latest uproar over the Justice department’s ‘war on porn.” There is something about regulating pornography that causes even the most prurient libertarian to become apoplectic. Glenn Reynolds, a law professor and reasonably logical fellow, though certainly no prude, rants, ‘And if the Administration thinks that this is a good use of their “computer forensics” experts, then they must have decided that terrorists aren’t a threat any more.” Reynolds analysis of other people’s statements is typically rather sharp. So why does he stumble into such an obviously false dilemma?
As Justin Katz notes,

Six “specialists” are working on something other than terrorism, and that’s a signal that the War on Terror has been abandoned? Ms. Sullivan doesn’t give us more of an idea of the cost than “millions,” which is a pretty broad range, but how many millions not devoted to the multibillion-dollar effort of national defense indicate unduly skewed priorities? [emphasis in original]

Reynolds, though, isn’t the only one that falls for this line of reasoning. Alphecca, another skilled debater and critical thinker, adds:

We’ve got a lot of problems in this country right now, not the least of which is that we’re trying (as a nation, a government) to defend our borders from mutant terrorists. We’re in the middle of a costly war in Iraq.
….
But with all that is going on and all that we have to worry about, not the least of which is that we’re in an election year, why the hell is the administration worrying about porno?
Is there really some urgent need for Ashcroft and the FBI and prosecutors et al to be tying up precious manpower, resources, and court time with this nonsense? And by the way, this is “adult” porno we’re talking about. Consenting adults having sex and allowing consenting film makers to photograph it for consenting adult viewers.

While Alphecca also falls for the false dilemma, I’m more interested in the way he tops it off by invoking the third law of libertarianism: ‘Consenting adults should be able to do whatever they want.” Fortunately, I’ve never met a libertarian who would make that ‘law” an absolute principle. Yet it always makes me wonder what criteria they use for drawing the line of moral demarcation. Most libertarians would exclude certain practices of German cannibals from the Consenting Adult standard, so why do they take such issue with the government prosecuting the producers of such videos as Forced Entry? According to ABCNews this video,

‘…features three graphic scenes of women being spat upon, raped and murdered. Extreme Teens #24 has adult women dressed up and acting like little girls in various hard-core pornographic scenes.”

Even Paul Fishbein, president of Adult Video News, a trade journal for the adult entertainment industry, has a hard time justifying the films:

“They’re horrible, unwatchable, disgusting, aberrant movies that I’d have to vote were not obscenity because the First Amendment is pure and has to remain pure.”

Fishbein is probably not alone in his believing that the First Amendment is “pure” and that is protects such material. The Supreme court ruled in the 1957 case Roth vs. United States, that prosecution for possession or distribution of obscene material is lawful, and that obscene speech is not protected under the Constitution. Sixteen years later, Miller vs. California established the “three-pronged test” for obscenity that all obscenity prosecutions have to meet:

(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

The Court also determined that a jury may measure “the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a ‘national standard.’” This allows individual communities a role in making decisions about what constititutes ‘obscene material.”
According to the Baltimore Sun, the Justice Department pursued obscenity cases vigorously in the 1970s and ’80s until they ‘came to a standstill under Janet Reno.” Just because the Clinton administration neglected to uphold the law, though, doesn’t mean that Bush should do the same. The Justice department shouldn’t be in the business of deciding what laws they deem worthy of prosecuting. They have a duty to act when federal law is being flagrantly and openly violated.
Rather than rely on the executive branch to ignore the law, libertarians who disagree with the Miller test should petition Congress to have the obscene materials protected by federal statute. Perhaps in the process they can explain what redeeming value there is in materials that depict ‘consenting adults” urinating and defecating on each other, being orally sodomized until they choke, or recreating scenes of brutal rape. If they truly believe that such pornography has a important ‘free speech” purpose that is worth preserving then they should present their case.
Update: Jeff Soyer of Alphecca has a post in response to my comment in which he adds:

I have never, and ever will defend pornography and certainly I don’t defend violent, disgusting porno that would repel the average person. My post was about priorities for our FBI. We are running a half-trillion deficit, and we are tying up agents who could better be spending their time scanning and investigating the thousands of “clues” being spoken, published, webbed, every day.

I can respect that position even if I can’t completely agree. Also, I should point out that I used Jeff as an example because I respect his opinions and I owe him an apology for making it is sound as if he were somehow “pro-porn.”
When pointing out areas of disagreement, there’s always the temptation to pull a quote from some looney blogger and use that as an “unbiased sampling.” Instead, I prefer, whenever possible, to quote people who have proven to be solid thinkers and have thought about the positions they take. Jeff is that kind of guy and I would highly recommend his blog, particularly to anyone who is interested in Second Amendment and gun control issues.



  • paul seaton

    Dear Joe, Nice observation apropos to the libertarian (okay, for nuance: many libertarians’) incapacity or unwillingness to turn their analytic swords inward, especially when it is their ideological categories and commitments that are being challenged (or so they believe). Perhaps you might want to continue your analysis of the libertarian mind/heart/soul by considering more fully 1) their dissicated notion of reason; 2) the disconnect they (okay, for nuance: many … ) exhibit between reason, conscience, and the rest of our inner life (shame, humility, and so on). This would be good ad hominem analysis, of the sort that Socrates (and Peter Lawler) was a pastmaster. Just a thought.
    Keep on keeping them honest.
    Paul Seaton

  • paul seaton

    Dear Joe, Nice observation apropos to the libertarian (okay, for nuance: many libertarians’) incapacity or unwillingness to turn their analytic swords inward, especially when it is their ideological categories and commitments that are being challenged (or so they believe). Perhaps you might want to continue your analysis of the libertarian mind/heart/soul by considering more fully 1) their dissicated notion of reason; 2) the disconnect they (okay, for nuance: many … ) exhibit between reason, conscience, and the rest of our inner life (shame, humility, and so on). This would be good ad hominem analysis, of the sort that Socrates (and Peter Lawler) was a pastmaster. Just a thought.
    Keep on keeping them honest.
    Paul Seaton

  • http://www.evangelicaloutpost.com/ Joe Carter

    Hey Paul,
    Perhaps you might want to continue your analysis of the libertarian mind/heart/soul by considering more fully…
    That’s a good idea. But first I should probably take some potshots at my fellow conservatives. I’ve bashed leftists and libertarians lately so conservatives are due to come back around in the rotation. I haven’t really criticized my own kind since the dust up I had with the NRO crew. They are definitely overdue.

  • http://www.evangelicaloutpost.com Joe Carter

    Hey Paul,
    Perhaps you might want to continue your analysis of the libertarian mind/heart/soul by considering more fully…
    That’s a good idea. But first I should probably take some potshots at my fellow conservatives. I’ve bashed leftists and libertarians lately so conservatives are due to come back around in the rotation. I haven’t really criticized my own kind since the dust up I had with the NRO crew. They are definitely overdue.

  • Kevin T. Keith

    Regarding “false dilemma,” you’re right that this is not the only stupid policy of the Bush administration, but that hardly makes it worthwhile. The “dilemma” argument is not that Ashcroft’s hyperventilatory obsessions make it impossible to pursue other policies; it is that the resources devoted to them would be better used on other policies. This point holds unless the resources for any more-worthwhile policy exceed all need (in which case it would not be wasteful to devote resources to stupid policies, it would just be a bad idea).
    As for a defense of porn, I think you have the argument backwards. The entire second half of your post is devoted to First Amendment interpretation (partly encouraged by Paul Fishbein’s citation of the First Amendment); you then challenge “libertarians” to lobby for a First Amendment exemption for porn. But the First Amendment is just a legal mechanism; the libertarian argument is for a general principle of non-interference, irrespective of the legal system in place. I imagine libertarians would argue that if the First Amendment allows prosecutions for “obscenity,” then that is a flaw in the Constitution. From their perspective, there is never a need to offer a positive defense of the “redeeming value” or “important . . . purpose” of any choice made by free adults. The state must demonstrate the necessity of (not merely some people’s preference for) limiting such choices, and libertarians tend to take a dim view of Ashcroftian blue-nosed squeamishness as a “harm” that must be taken seriously as a reason to limit others’ liberty.
    So I think the libertarian position is untouched by your argument. The “false dilemma” argument, if meant literally, is unsound, but it is typically meant, I think, as a criticism of the priority given to anti-porn efforts, not a claim that they actually prevent simultaneous efforts in other areas. The First Amendment argument is a legal technicality that is of importance in the practical legal maneuvering over censorship in the US, but does not speak to the general libertarian position. And your challenge to libertarians to defend the content of free choices made by adults also misses their arguments, since to a libertarian those choices never need defending.

  • Kevin T. Keith

    Regarding “false dilemma,” you’re right that this is not the only stupid policy of the Bush administration, but that hardly makes it worthwhile. The “dilemma” argument is not that Ashcroft’s hyperventilatory obsessions make it impossible to pursue other policies; it is that the resources devoted to them would be better used on other policies. This point holds unless the resources for any more-worthwhile policy exceed all need (in which case it would not be wasteful to devote resources to stupid policies, it would just be a bad idea).
    As for a defense of porn, I think you have the argument backwards. The entire second half of your post is devoted to First Amendment interpretation (partly encouraged by Paul Fishbein’s citation of the First Amendment); you then challenge “libertarians” to lobby for a First Amendment exemption for porn. But the First Amendment is just a legal mechanism; the libertarian argument is for a general principle of non-interference, irrespective of the legal system in place. I imagine libertarians would argue that if the First Amendment allows prosecutions for “obscenity,” then that is a flaw in the Constitution. From their perspective, there is never a need to offer a positive defense of the “redeeming value” or “important . . . purpose” of any choice made by free adults. The state must demonstrate the necessity of (not merely some people’s preference for) limiting such choices, and libertarians tend to take a dim view of Ashcroftian blue-nosed squeamishness as a “harm” that must be taken seriously as a reason to limit others’ liberty.
    So I think the libertarian position is untouched by your argument. The “false dilemma” argument, if meant literally, is unsound, but it is typically meant, I think, as a criticism of the priority given to anti-porn efforts, not a claim that they actually prevent simultaneous efforts in other areas. The First Amendment argument is a legal technicality that is of importance in the practical legal maneuvering over censorship in the US, but does not speak to the general libertarian position. And your challenge to libertarians to defend the content of free choices made by adults also misses their arguments, since to a libertarian those choices never need defending.

  • http://www.evangelicaloutpost.com/ Joe Carter

    Kevin,
    The “dilemma” argument is not that Ashcroft’s hyperventilatory obsessions make it impossible to pursue other policies; it is that the resources devoted to them would be better used on other policies.
    True, but then you could carry that logic even further by claiming Government Agency X should be shut down in order to devote more resources to terrorism. Unless they believe that fighting terrorism is the only issue worth spending resources on then they need to be a bit more specific in arguing their case.
    I imagine libertarians would argue that if the First Amendment allows prosecutions for “obscenity,” then that is a flaw in the Constitution. From their perspective, there is never a need to offer a positive defense of the “redeeming value” or “important . . . purpose” of any choice made by free adults.
    I see what you

  • http://www.evangelicaloutpost.com Joe Carter

    Kevin,
    The “dilemma” argument is not that Ashcroft’s hyperventilatory obsessions make it impossible to pursue other policies; it is that the resources devoted to them would be better used on other policies.
    True, but then you could carry that logic even further by claiming Government Agency X should be shut down in order to devote more resources to terrorism. Unless they believe that fighting terrorism is the only issue worth spending resources on then they need to be a bit more specific in arguing their case.
    I imagine libertarians would argue that if the First Amendment allows prosecutions for “obscenity,” then that is a flaw in the Constitution. From their perspective, there is never a need to offer a positive defense of the “redeeming value” or “important . . . purpose” of any choice made by free adults.
    I see what you

  • http://www.alphecca.com/mt_alphecca_archives/000057.html Alphecca

    Still Meandering…

    Robert Prather is one of the brighter bloggers around and he has some suggestions on the direction of our foreign policy. Here’s a quote: …I doubt he [Bush] meant this exactly, but I would go as far as to say…

  • http://www.alphecca.com/mt_alphecca_archives/000057.html Alphecca

    Still Meandering…

    Robert Prather is one of the brighter bloggers around and he has some suggestions on the direction of our foreign policy. Here’s a quote: …I doubt he [Bush] meant this exactly, but I would go as far as to say…

  • Kevin T. Keith

    [M]ost libertarians who expect to be heard in a democracy understand the need to defend their claims. Simply hiding behind the

  • Kevin T. Keith

    [M]ost libertarians who expect to be heard in a democracy understand the need to defend their claims. Simply hiding behind the

  • http://christusvictor.blogspot.com/ Josiah

    Mutant terrorists?

  • http://christusvictor.blogspot.com Josiah

    Mutant terrorists?

  • http://www.bobmaurus.com/ Bob Maurus

    Joe said: I think you

  • http://www.bobmaurus.com Bob Maurus

    Joe said: I think you

  • jmcgraw

    Pure Libertarianism–even allowing the consenting cannibalism–would work as long as there is a total balance of freedom across the board. If the balance is off even a bit it won’t work. For this reason I find Libertarianism impractical. You can never reform a society that already denies various liberties. Because while doing so the liberties will never be balanced and decreeing one liberty will only cause problems because there will always be a related restriction that causes the allowance of the first liberty to become a form of tyranny.
    I think Libertarianism would only work if you could start a new society from scratch.

  • jmcgraw

    Pure Libertarianism–even allowing the consenting cannibalism–would work as long as there is a total balance of freedom across the board. If the balance is off even a bit it won’t work. For this reason I find Libertarianism impractical. You can never reform a society that already denies various liberties. Because while doing so the liberties will never be balanced and decreeing one liberty will only cause problems because there will always be a related restriction that causes the allowance of the first liberty to become a form of tyranny.
    I think Libertarianism would only work if you could start a new society from scratch.

  • ucfengr

    Pure libertarianism could never work because there will always be individuals or groups strong enough and willing to use force to enforce their will on others. Pure libertarianism is like all those other great “-isms”, they work on paper, but fail in reality due to the imperfectability of man.

  • ucfengr

    Pure libertarianism could never work because there will always be individuals or groups strong enough and willing to use force to enforce their will on others. Pure libertarianism is like all those other great “-isms”, they work on paper, but fail in reality due to the imperfectability of man.

  • http://www.blindmindseye.com/ Mike

    I am for the most part a libertarian. I scored almost a 100 out of 160 on that test that Vox Day had up a month or two ago. However, I think porn can and should be regulated.
    Porn is not speech, it is just mindless f$%^ing. It shouldn’t be distributed in a way accessible to kids, but it should be accessible to adults. If you’re an adult and still want to see some of that stuff then to say you need Jesus is an understatement….
    What we need is a compromise. We allow most categories to be unregulated, and still outlaw child porn and beastiality. The best compromise that would respect social conservatives’ wishes on “getting it out of their faces” would be:

    Allow only artistic, medical and historical displays of sex on regular broadcast tv and radio. Exempt satellite radio since you have to pay to get access.
    Require all adult magazines to be shrink-wrapped to the point that only the title is shown.
    Give all porn sites 1 year to transfer their assets to a domain ending with .xxx or .porn. They could still have domain redirectors from their .com to their new .xxx domain since blocking .xxx would be trivial. The best part of this, is that ISPs could make more money by offering families an extra $2-$5/month service to do serverside porn site blocking.
    Exempt sites that use .xxx from community decency standards since blocking them is so easy.

  • http://www.blindmindseye.com Mike

    I am for the most part a libertarian. I scored almost a 100 out of 160 on that test that Vox Day had up a month or two ago. However, I think porn can and should be regulated.
    Porn is not speech, it is just mindless f$%^ing. It shouldn’t be distributed in a way accessible to kids, but it should be accessible to adults. If you’re an adult and still want to see some of that stuff then to say you need Jesus is an understatement….
    What we need is a compromise. We allow most categories to be unregulated, and still outlaw child porn and beastiality. The best compromise that would respect social conservatives’ wishes on “getting it out of their faces” would be:

    • Allow only artistic, medical and historical displays of sex on regular broadcast tv and radio. Exempt satellite radio since you have to pay to get access.
    • Require all adult magazines to be shrink-wrapped to the point that only the title is shown.
    • Give all porn sites 1 year to transfer their assets to a domain ending with .xxx or .porn. They could still have domain redirectors from their .com to their new .xxx domain since blocking .xxx would be trivial. The best part of this, is that ISPs could make more money by offering families an extra $2-$5/month service to do serverside porn site blocking.
    • Exempt sites that use .xxx from community decency standards since blocking them is so easy.
  • jmcgraw

    “Pure libertarianism could never work because there will always be individuals or groups strong enough and willing to use force to enforce their will on others”
    That is the one thing the government is for, to enforce property laws. I don’t think pure liberterianism implies anarchy.
    they work on paper, but fail in reality due to the imperfectability of man.
    What you are getting at is why no government will work in the long run. All will come to naught, eventually. But if done properly, I think Libertarianism would be the best interim solution.

  • jmcgraw

    “Pure libertarianism could never work because there will always be individuals or groups strong enough and willing to use force to enforce their will on others”
    That is the one thing the government is for, to enforce property laws. I don’t think pure liberterianism implies anarchy.
    they work on paper, but fail in reality due to the imperfectability of man.
    What you are getting at is why no government will work in the long run. All will come to naught, eventually. But if done properly, I think Libertarianism would be the best interim solution.

  • David Scott

    The gun-rights argument is largely of this kind. It is complicated by some positive-benefit arguments (self-defense, etc.), and by its Second Amendment legal framework, but by and large the anti-gun-control position essentially comes down to “I can have a gun if I want to; leave me alone”.
    I would disagree with you here-gun rights have a great deal more with defending oneself from others, as well as helping to prevent tyranny by arming the populace, as the founders intended.
    Non-pornography free-speech defense is often of the “consenting adults” type.
    Also here – free speech is designed to allow exposure of ideas, especially ideas that are unpopular with the government, and thus not allowing them to control the populace a la 1984.
    Many of the non-free-speech sexual-liberty issues are of the same type as well. The standard arguments for abortion rights, gay rights, acess to birth control, and so forth, are all basically “it’s nobody’s business if you do.”
    Well, I agree on the second two, but abortion is a bit more complicated, as the fetus has the potential of living-thus, the invention of the Woman’s Right To Choose, which is considerably more than just saying “It’s my business…”
    I don’t really think the standard Libertarian argument is quite as effective as it could be… it is tempting to sum things up so tidily, but life, and society, tend to be very complicated…

  • David Scott

    The gun-rights argument is largely of this kind. It is complicated by some positive-benefit arguments (self-defense, etc.), and by its Second Amendment legal framework, but by and large the anti-gun-control position essentially comes down to “I can have a gun if I want to; leave me alone”.
    I would disagree with you here-gun rights have a great deal more with defending oneself from others, as well as helping to prevent tyranny by arming the populace, as the founders intended.
    Non-pornography free-speech defense is often of the “consenting adults” type.
    Also here – free speech is designed to allow exposure of ideas, especially ideas that are unpopular with the government, and thus not allowing them to control the populace a la 1984.
    Many of the non-free-speech sexual-liberty issues are of the same type as well. The standard arguments for abortion rights, gay rights, acess to birth control, and so forth, are all basically “it’s nobody’s business if you do.”
    Well, I agree on the second two, but abortion is a bit more complicated, as the fetus has the potential of living-thus, the invention of the Woman’s Right To Choose, which is considerably more than just saying “It’s my business…”
    I don’t really think the standard Libertarian argument is quite as effective as it could be… it is tempting to sum things up so tidily, but life, and society, tend to be very complicated…

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    And so goes another round of the bash. Sometimes I don’t even remember why I get out of bed in the morning. But I guess it’s too late to reverse the decision.

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    Well, again.

    And so goes another round of the bash. Sometimes I don’t even remember why I get out of bed in the morning. But I guess it’s too late to reverse the decision.

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    Well, again.

    And so goes another round of the bash. Sometimes I don’t even remember why I get out of bed in the morning. But I guess it’s too late to reverse the decision.

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    Well, again.

    And so goes another round of the bash. Sometimes I don’t even remember why I get out of bed in the morning. But I guess it’s too late to reverse the decision.

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    Well, again.

    And so goes another round of the bash. Sometimes I don’t even remember why I get out of bed in the morning. But I guess it’s too late to reverse the decision.

  • http://batteryempire.info/3/compaq-presario-2500-battery-guide.htm foosh’s blog

    Well, again.

    And so goes another round of the bash. Sometimes I don’t even remember why I get out of bed in the morning. But I guess it’s too late to reverse the decision.

  • http://batteryempire.info/3/compaq-presario-2500-battery-guide.htm foosh’s blog

    Well, again.

    And so goes another round of the bash. Sometimes I don’t even remember why I get out of bed in the morning. But I guess it’s too late to reverse the decision.

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    Well, again.

    And so goes another round of the bash. Sometimes I don’t even remember why I get out of bed in the morning. But I guess it’s too late to reverse the decision.

  • http://batteryempire.info/3/compaq-presario-2500-battery-guide.htm foosh’s blog

    Well, again.

    And so goes another round of the bash. Sometimes I don’t even remember why I get out of bed in the morning. But I guess it’s too late to reverse the decision.

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