Why I'm anti-anti-porn, Part 2

This being the next in my occasional installments of "Why I'm anti-anti-porn". The last one about issues involved in the production of porn, where I think there are real concerns, and where I think the critiques of porn production fall flat. I've realized that there was one aspect of the antiporn feminist critique that kind of "bridges" the critique of porn production with porn as an expression issue, and one that I didn't address in my last essay.

This idea was a large part of feminist anti-porn rhetoric, summed it up in this quote by Andrea Dworkin from “Letters from a War Zone”:

“The pimps and the normal men have a constitution that says the filmed rapes are "protected speech" or "free speech." Well, it doesn't actually say that--cameras, after all, hadn't been invented yet; but they interpret their constitution to protect their fun. They have laws and judges that call the women hanging from the trees "free speech.”

Essentially, this argument is an attempt to take some of the piss out of the free speech/free expression arguments for porn by pointing out that what's shown in pornography are real acts performed on real women, hence, either free expression arguments don't apply, or, perhaps more broadly, the concept of free expression itself is a red herring, since expressions and acts can't meaningfully be differentiated. (The latter strong version being essentially Catherine MacKinnon's argument, in a nutshell.) In its most extreme form, there's the urban legend that rapists make pornography of women being raped, that this is sold as commercial porn, and that this action is protected because porn is given free speech protections.

What this speaks to is a profound confusion as to what the First Amendment protects and what it doesn't.

First off, some clarifications. I realize by saying "First Amendment", I'm being US-centric here – I am ultimately talking about the broader concept of free speech protections that would apply to varying degrees in liberal democracies anywhere. However, the US, generally speaking, has very strong free speech protections relative to other countries and a very highly developed body of law around just what falls under First Amendment protections and why. And yes, I'm also aware that under current First Amendment law, there's an exception for "obscenity". It’s an idea that I think is archaic and will eventually meet its demise, but right now, it is what it is. I'm also aware that what's "obscene" varies from locality to locality (another anachronism in the Internet era), but that in most areas, the overwhelming majority of commercially available pornography doesn't rise to the legal standard of "obscenity". Given that, one can safely say that most commercially available porn today is broadly protected by the First Amendment in most parts of the US.

To say that the First Amendment protects the final product of pornography as expression, however, does not mean that anything that therefore anything that takes place in the production of pornography is given legal carte blanche. The full consent of the performers must be given and the performers must be of legal age to give consent. If porn is made using any performer who is coerced, then that's an act of rape. If a performer is underage, it’s statutory rape. The status of porn as expression doesn't change that.

And the legal status of the final product is affected as well. Obviously, one cannot go out and sell child pornography, for example. Neither can one simply go out and legally sell a video of an actual rape. The rights to buy and sell the image of any performer or model is covered in a contract known as a model release, an agreement between the performer and producer to be able to release the model's images in exchange for payment. Like any contract, if it’s agreed to under duress, that contract is null and void and it’s a crime to distribute those images.

There is one area where First Amendment law does protect something that might otherwise be illegal. That concerns the actual act of performing in pornography, which has been treated as prostitution by some overzealous prosecutors. The Los Angeles County DA actually tried to shut down the LA porn industry this way in the mid-80s, charging several performers as prostitutes and a producer, Harold Freeman, as a pandererer. An important case in free speech law emerged from this event, California v. Freeman. It says, basically, that if you pay somebody to have sex with you, that's prostitution and therefore illegal. If you pay somebody to have sex in front of you (whether it’s live sex or in pornography), that's expression and therefore protected by the First Amendment. It’s a rather fine legal point, and personally, I support simply decriminalizing prostitution and other kinds of sex work (both for the buyers and sellers) overall. (Technically, this precedent is only law in California, but no other prosecutor has attempted to challenge this precedent. In much of Europe, Japan, and Australia, where prostitution is legal or quasi-legal, this distinction is moot. Whether Swedish laws banning the buying of sex change the legal status of porn is an interesting question, though very little porn is produced in Sweden itself.)

Admittedly, there are areas that are borderline and where the law hasn't always provided the protections that it should. Such is the case with small number of pornographers who produce porn after obtaining the barest thread of consent from the models. One such scam is a "bait and switch" where models are hired for ostensible nude or glamour shots, and then told when they arrive that it’s a hardcore porn shoot and pressured into going through with it. I'll name and shame one website that's accused of doing this – Bang Bus who's rather shameful practices were exposed in a Miami Weekly article in 2004. And, of course, there's the infamous Joe Francis, of Girls Gone Wild fame, who's tactics of isolating and pressuring very drunk women into both softcore and hardcore performances are well-known. I'm unclear why there hasn't been legal recourse against these idiots – perhaps the women victimized by these people don't seek out such recourse, or perhaps the law in this area is underdeveloped. It’s clearly an area where reform needs to take place, both in the law and in the industry itself. As is so often the case when it comes to problems in the porn industry, these problems are not a speech issue, but a labor issue. Attacking free speech protections for pornography does not directly address the problem and causes all kinds of collateral damage.

Next in this series, I'll address the issue of the content of porn and its supposed effects.