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

Posted By Joe Carter On April 17, 2004 @ 1:30 am In Libertarians | Comments Disabled

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.” [1] There is something about regulating pornography that causes even the most prurient libertarian to become apoplectic. Glenn Reynolds [2], 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 [3]?
As Justin Katz [4] 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 [5], 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 [6] 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 [7] 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 [8], 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 [9] 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 [10] 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.


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URLs in this post:

[1] Justice department’s ‘war on porn.”: http://www.baltimoresun.com/news/bal-te.obscenity06apr06,0,3004361.story?coll=bal-home-headlines

[2] Glenn Reynolds: http://www.instapundit.com/archives/014937.php

[3] false dilemma: http://www.nizkor.org/features/fallacies/false-dilemma.html

[4] Justin Katz: http://dustinthelight.timshelarts.com/lint/000395.html

[5] Alphecca: http://www.alphecca.com/mt_alphecca_archives/000031.html

[6] German cannibals: http://www.vigilancematters.com/archives/000032.html

[7] ABCNews: http://abcnews.go.com/sections/wnt/US/porno030828.html

[8] Roth vs. United States: http://members.aol.com/dcspohr/lenny/rothvsus.htm

[9] Miller vs. California: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=413&invol=15

[10] Alphecca: http://www.alphecca.com/mt_alphecca_archives/000057.html

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