Jim (jazzmanjim) wrote, @ 2004-04-09 00:33:00

Isn't There Something Better They Could Be Doing?
Normally, I'm a John Ashcroft fan. This time, though, he seems to have gone way, way off the reservation to me.

The Justice Department is spending millions of dollars to start prosecuting Federal porn cases again - something that hadn't been done for about ten years.

On one hand, I can see some of the merits of what they're doing. Porn has, in some cases, gotten out of hand. It's shoved into your e-mail box (and the e-mails of children) without your consent and often against your express desire otherwise. There's no telling what pop-up ad will have something pornographic in it, even on the most innocent of web sites. It crops up in places that no parent might suspect (hence, the furors over the Super Bowl halftime show). It routinely employs underage women (Tracy Lords thankfully credits an FBI raid with ending her porn career at the age of 18). It's exploded to the point where it's nearly inescapable.

On the other hand, the scope of the investigation here seems far too broad to me. The article says that the FBI will even be looking at "soft-core cable programs such as HBO's long-running Real Sex or the adult movies widely offered in guestrooms of major hotel chains". That seems to be to be a huge overreach and I'm not sure why it's necessary to do so. Generally, porn is an adult activity for adults to choose if that's what they want. If porn industry people are using kids, then bust them hard. If they're shoving porn into our boxes without our consent, well, that's not illegal, but it certainly could be if we wanted the legislation drawn to narrowly cover that.

The problem is that we of course have a First Amendment problem here. The bulk of court rulings on porn is that the First Amendment covers it and that it's just fine. The real relevant case was decided in 1973 - Miller v. California - and it held that something could be considered "obscene" only if an average person applying contemporary community standards would find it patently offensive. Sounds good, right? There are some problems with it, though.

It's nearly impossible to get a conviction under those guidelines because there's so much play in words like "patently" and "contemporary community standards". There's just no way to tell what a jury will find.

For my money, if we really wanted to get to the heart of porn, we'd look at it as a commercial activity. There are all sorts of things that might be perfectly constitutional but that are regulated or even prohibited commercially. That porn is sold makes it a matter of commerce and that's something that certainly could be regulated, even on the Federal level. I'm not suggesting that it ought to happen, but that it's possible.

Either way, I really think that the Justice Department has other things to worry about instead of making this a priority. Last I heard, there are still folks creeping into the country who want to kill lots and lots of us.