Obscenity Crackdown—What Will the Next Step Be?


So here's what I wonder about the Justice Department's planned new obscenity crackdown. As we know,there's lots of porn of all varieties out there on the Internet. Idon't know how much of it is produced in the U.S. -- but even ifit's 75 percent, and every single U.S. producer is shut down,wouldn't foreign sites happily take up the slack?

It's not like Americans have some great irreproducible nationalskills in smut-making, or like it takes a $100 million Hollywoodbudget to make a porn movie. Foreign porn will doubtless be quitean adequate substitute for the U.S. market. Plus the foreigndistributors might even be able to make and distribute copies ofthe existing U.S.-produced stock -- I doubt that the imprisonedcopyright owners will be suing them for infringement (unless theU.S. government seizes the copyrights, becomes the world #1pornography owner, starts trying to enforce the copyrights againstoverseas distributors, and gets foreign courts to honor thosecopyrights, which is far from certain and likely far fromcheap).

And even if overall world production of porn somehow improbablyfalls by 75 percent, will that seriously affect the typical pornconsumer's diet? Does it matter whether you have, say, 100,000 porntitles (and live feeds) to choose from, or just 25,000? So we havethree possible outcomes:

(1) The U.S. spends who knows how many prosecutorial andtechnical resources going after U.S. pornographers. A bunch of themget imprisoned. U.S. consumers keep using the same amount of pornas before. Maybe they can't get porn on cable channels or in hotelrooms any more, but they can get more than they ever wanted on theInternet. Nor do I think that the crackdown will somehow subtlyaffect consumers' attitudes about the morality of porn -- it seemshighly unlikely that potential porn consumers will decide to stopgetting it because they hear that some porn producers are beingprosecuted.

The only potential benefit: If you really think that the pornindustry is very bad for its actors, you're at least sparingAmericans that harm, and shifting it off-shore instead. Other thanthat: The investment of major prosecutorial resources yields a netpractical benefit of roughly zero.

(2) The government gets understandably outraged by the "foreignsmut loophole." "Given all the millions that we've invested ingoing after the domestic porn industry, how can we tolerate all ourwork being undone by foreign filth-peddlers?," pornographyprosecutors and their political allies would ask. So they unveilthe solution, in fact pretty much the only solution that will work:Nationwide filtering.

It's true: Going after cyberporn isn't really that tough -- ifyou require every service provider in the nation to block access toall sites that are on a constantly updated government-run"Forbidden Off-Shore Site" list. Of course, there couldn't be anytrials applying community standards and the like before a site isadded to the list; that would take far too long. The governmentwould have to be able to just order a site instantly blocked,without any hearing with an opportunity for the other side torespond, since even a quick response would take up too much time,and would let the porn sites just move from location to locationevery several weeks.

Sure, that sounds like a violation of First Amendment proceduralrules, even when the government is going after substantivelyunprotected obscenity. Sure, that would make it easier for thegovernment to put all sorts of other sites on the list. Sure, it'sa substantially more intrusive step than any of the Internetregulations we've seen so far, and is substantially more intrusivein some ways than virtually any speech restriction in Americanhistory. (I say in some ways, not in all ways, since it would havea limited substantive focus -- but the procedure would beunprecedently restrictive, and First Amendment law has alwaysrecognized the practical importance of procedure.) But it's theonly approach that has any hope of really reducing theaccessibility of porn to American consumers.

(3) Finally, the government can go after the users: Set up"honeypot" sites (seriously, that would be the technicallycorrect name for them) that would look like normal offshorepornography sites. Draw people in to buy the stuff. Figure out whothe buyers are (you'd have to ban any anonymizer Web sites thatmight be used to hide such transactions, by setting up some sort ofmandatory filtering such as what I described in option (2). Thenarrest them and prosecute them. Heck, lock each one up for severalyears like you would a child porn buyer. Make him register as a sexoffender. Seize his house on the theory that it's a forfeitableasset, since it was used to facilitate an illegal transaction. Allbecause he, or he and his wife, like to get turned on by watchingpictures of people having sex. Then repeat for however many peopleit takes to get everyone scared of the Smut Police.

So we really have three possible outcomes:

(1) The crackdown on porn is doomed to be utterlyineffective at preventing the supposedly harmful effects of porn onits viewers, and on the viewers' neighbors.

(2) The crackdown on porn will be made effective -- byimplementing a comprehensive government-mandated filtering systemrun by some administrative agency that constantly monitors the Netand requires private service providers to block any sites that theagency says are obscene.

(3) The crackdown on porn will turn into a full-fledgedWar on Smut that will be made effective by prosecuting,imprisoning, and seizing the assets of porn buyers.

Seriously, I don't see many other alternatives. The governmentcould try to put pressure on financial intermediaries, for instancerequiring Visa and MasterCard to refuse transactions with certainlocations; but unless that's made just as intrusive as option #2above, it will be hopelessly ineffective, since sites can easilyjust periodically change their payee names, or use various offshoreintermediaries. The government might also try to persuade foreigncountries to join its campaign, but I'm pretty sure that won'twork, either. First, the Europeans are apparently fairly tolerantof much porn; and, second, I highly doubt that we can persuadeevery poor third-world country, some of which have thriving tradesin real flesh, to spend its resources creating and actuallyenforcing anti-porn laws, in the face of whatever payoffs the pornindustry is willing to provide.

So, supporters of the Justice Department's plans, which do youprefer -- #1, #2, or #3? Note that I'm not asking whether porn isbad, or whether porn should be constitutionally protected. I'mcertainly not asking whether we'd be better off in somehypothetical porn-free world (just like no sensible debate aboutalcohol, drug, or gun policy should ask whether we'd be better offin some hypothetical alcohol-, drug-, or gun-free world).

I'm asking: How can the government's policy possibly achieve itsstated goals, without creating an unprecedentedly intrusivecensorship machinery, one that's far, far beyond what the JusticeDepartment is talking about right now?