Sunday, May 2, 2004

Jonathan A. Knee

Is that really legal?

The Federal Communications Commission's well-publicized post-Super Bowl campaign against broadcaster "indecency" is misplaced, if not downright comical. While the F.C.C. is fining radio "shock jocks" for using language milder than what can be heard in most high-school parking lots, Americans can see graphic pornography on the Internet. It's time to consider a more radical approach to censoring pornography.

But what? The First Amendment limits the government's ability to restrict freedom of expression. In general, only material deemed "obscene" can be penalized. The commission's additional power over broadcasters comes from its management of the public airwaves and the granting of local TV and radio licenses.

But as cable and digital television, along with the Internet, grow more popular, Americans get less information and entertainment from traditional over-the-air broadcasters. The result is that the F.C.C.'s content and ownership regulations are becoming increasingly irrelevant. Earlier this year the commission issued its largest fine ever, against the broadcaster of a program called "Bubba the Love Sponge," which featured classic cartoon characters in sexual situations. The host of the program was fired, but images of real people performing the acts he described are on the Web.

The Supreme Court has ruled that the government can protect minors from inappropriate content on the Web that falls short of the generally applicable "obscenity" standard. But this leaves two problems. First, while the law does make it harder for minors to buy pornography on the Internet, there are still plenty of graphic images available without charge. Second, the problem isn't only what minors see. With 70 percent of men aged 18 to 34 visiting a pornographic Web site at least once a month, this material affects everyone.

The law of obscenity has not fundamentally changed since the Supreme Court in 1973 vaguely directed a jury to apply "contemporary community standards" in reaching a verdict. In the Internet era, the question of what community and what standards is even less clear. Amending the Constitution is impractical. The Justice Department's strategy of bringing test cases to clarify the meaning of obscenity is time-consuming and unpredictable.

What we need is a kind of regulation that does not implicate the First Amendment at all — yet goes to the heart of the enterprises that fuel the multibillion-dollar pornography industry. The value of laws against prostitution is well established. What if we were to enact laws that made it illegal to give or receive payment to perform sex acts?

The policy justifications for such a law are similar to those for laws against prostitution: society objects on principle to the commodification and commercialization of sexual relations, even between consenting adults. Such a law would not implicate the profanity or nudity that has been the recent focus of the F.C.C. — it would deal exclusively with sex acts, which the Internet seems to revel in.

This law would put the largest pornographers out of business: they could not pay someone to perform in a hard-core pornographic film. 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 and seek constitutional protection for their chosen vocation.

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.

Given current trends, however, our government would do well to take up the challenge of how to devise more effective legislation to deal with a pornography industry that is more graphic and more accessible than ever before. It would certainly be more useful than chasing down wardrobe malfunctions and scolding sophomoric talk-radio clowns.

— Jonathan A. Knee is director of the media program at Columbia Business School.

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Created: May 4, 2004
Last modified: May 4, 2004
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