It’s not every day that a New York Times op-ed breezily suggests regulating a $9 billion industry out of existence. This is probably a good thing. But Sunday’s Times included an op-ed by Jonathan Knee, who is “director of the media program at Columbia Business School,” that does just that. He asks, “What if we were to enact laws that made it illegal to give or receive payment to perform sex acts?” That would stop the porn industry in its tracks, and we could do it on the same ground that we prohibit prostitution: because we object as a society to the commodification or commercialization of sex. He writes, “The First Amendment does not protect otherwise illegal activities simply because they are part of a movie. If it did, bank robbers would bring along a film crew to every heist….”
He adds, in a rather amazingly offhand fashion, “This proposal is not perfect. One might complain, for instance, that jobs in the pornography industry, like those in manufacturing, would migrate offshore. And one might want more empirical evidence of actual harm from the increased exposure to pornography before taking so radical a step.” No kidding: These are the principal practical and principal principled objections to restrictions on pornography, and Knee doesn’t bother to address them. (He mentions a statistic, origin unknown, that 70 percent of men between 18 and 34 visit a porn site at least once a month, which shows that “this material affects everyone.” Not everyone will find this persuasive.)
Law professor Jack Balkin has argued that Knee is wrong about free-speech jurisprudence: a regulation that is not per se designed to stifle expression but does shut down an entire genre of movies would be (and should be) understood by the courts as a violation of the amendment.
My own objection is different. I’m open to the idea of censorship for moral purposes, especially at the local level. But that argument has to be made openly, not tap-danced around. And if Knee is interested in regulating pornography because it corrupts morals and undermines character, then his proposal is insufficient. It would not touch pornography that uses computer animation or other forms of simulation; it would not, presumably, do anything about the vast stock of pornography already on the market. His idea is novel and interesting, but just not sufficiently well developed to form a basis for action.