Jonathan A. Knee makes an interesting point: it’s inconsistent to make it illegal for me to pay someone to have sex with me, yet allow me to pay someone to have sex with someone else and let me film it. But rather than coming to the obvious conclusion that it’s also inconsistent to make it illegal to pay for something that it’s legal to do for free, he decides to go the other direction. Knee wants to ban pornography by making it illegal to pay anyone to perform a sex act.
Knee says that “society objects on principle to the commodification and commercialization of sexual relations, even between consenting adults.” According to Knee, the consumers of the 11,000 hard-core porn movies produced in the U.S. annually–that’s 20 times as many movies as Hollywood produces–are not members of his society. Nor are any of the people who contribute to porn’s $12 billion in annual profits, or the 40 million Americans who admit to looking at online porn, or the thousands of people who have worked in the porn industry. Of course it’s likely that some people who secretly view porn publicly denounce it, but the point is that if Americans didn’t want porn around, we’d stop buying it.
Furthermore, I wonder if Knee realizes that his law wouldn’t stop porn from being made; it would just change the logistics. Most people who object to porn also object to Playboy and its ilk as equally dirty and objectionable, but since those bunnies aren’t performing a sex act, they’re welcome to pose nude for millions of dollars. As for porn featuring actual sex, Knee’s law would simply cause the industry to start distributing the profits differently. There is already a burgeoning field of “amateur” porn, videos where people shoot themselves for their own amusement, then sell the tapes to a distributor. A law against paying people to perform a sex act wouldn’t apply to say, the Paris Hilton sex tape, where no one involved was paid to have sex. Such a post-production payment scheme could also be arranged with commercial porn actors. Perhaps they could be made producers and given a cut of the profits. The options are endless, and when billions of dollars are up for grabs, you’d better believe that the porn industry will exploit all of them.
The bottom line is that the government is never going to be able to control porn. Like drugs, guns, and dozens of other restricted products, when consumers want it badly enough, producers will find a way to get it to them. The best the government can do is attempt to police the nonconsentual abuses that often go on in marginalized industries. To the porn industry’s credit, largely out of fear of government intrusion, porn makers have done an excellent job of preventing mistreatment of their actors, preventing the spread of disease, and restricting the finished products to those who want to see them. Of course there are some fringe pornographers who abuse the talent and otherwise give the industry a bad name, but most producers are self-policing, for their own good. However, so long as the industry remains so marginalized, it is hard for those few participants who have been mistreated to come forward and seek justice. As with prostitution, criminalization is an impediment to protecting people from the harms it can cause.
Moreover, an open, freely operating porn industry is less likely to force its product on people who don’t want it. If pornographers can’t promote their product in dirty magazines–which would still be legal, since most only have naked models, not actual sex acts–or on commercial websites, they’re that much more likely to turn to spam email and other methods of dissemination likely to be viewed by children or by adults who object to porn. That means more porn where people don’t want it, and less porn where they do. How does that make sense?
Bottom line: commodification of a legal act between two consenting adults should be legal, no matter how many people find it distasteful. As Knee points out himself, a huge number of Americans have revealed a preference for the existence of porn by seeking it out and viewing it, so clearly, the consensus that pornography is wrong in “principle” is not as widespread as he would like us to believe. Almost as an afterthought, Knee notes, “one might want more empirical evidence of actual harm from the increased exposure to pornography before taking so radical a step.” No such credible evidence exists. Of course, if other government regulations are any clue, the government doesn’t need such evidence in order to pass a law. But we’d all be better off if they did.