I'd say there are a lot of good arguments for why pornography, or at least the public distribution thereof, could be made illegal, and it seems that many countries in the West are beginning to regulate internet pornography more strictly lately.

Some arguments I find interesting:

1. One argument is that an actor in a pornographic film doesn't have the physical ability to consent to being viewed by strangers on the internet, therefore a 'contract' of consent to a porn company is null and void; and a person viewing a stranger in a sexual situation would typically be criminally charged under laws such as voyeurism laws; therefore viewing internet pornography is the same as voyeurism, and therefore could be made illegal to view or distribute.

2. Likewise, an argument could be made that producing or viewing pornography violates the property rights of one's body, and while legally a body is one's living property, much like a horse one owns, one isn't legally allowed to do "anything" they want to it in practice; for example one can't legally give a person written permission to murder you and have them escape murder charges.

So using these facts, a case could be made that producing pornography for the viewing of strangers is permitting them to engage in a property rights violation against one's body, and therefore could be illegal regardless of one's consent.

---

I think these arguments have good philosophical bases, and apparently the trend in the West is to begin cracking down on internet pornography, so it will be interesting to see where this trend leads; likewise the popularity of 'amateur' pornography seems to be helping to drive commercial pornography out of business, much as internet piracy has more or less done CD music, so it'll be interesting to see the direction things go.

Hopefully not an excessive backlash like the Victorian Era of England, or the rise of the Ayatollah in Iran following the Shah's removal from power, but if society on the whole is showing signs of backlash against the more uncultured and sub-literati elements in mass culture, a la internet pornography and lots of "quasi-pornography" which doesn't meet any artistic merit despite barely being over the 'legal' threshold, this may be a good thing.

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What is your basis for that argument?  Just coming up with a theory off the top of your head is not an argument.  It has to be based on some reasonable understanding of the law ... or at least some reasonable understanding of the words themselves.


The argument is that legitimacy is determined by objective realities, not by subjective strokes of the pin by man-made regimes which are constantly changing and have no objective authority beyond what man chooses to give them, and will likely be distant memories like Rome in coming ages.

Therefore, based on the fact that methods of consent done via mere pen and paper would be impossible to achieve if done in the flesh, the argument is that the interactions are inherantly non-consentual regardless of how they're solipisitically defined by imperfect governments or contracts.

Where did you get the idea that consent is undermined by mass distribution? 

I've mentioned already that, for example, if a person who wasn't born at the time the contract was signed were to view the media in question. Given that it would be impossible for a person who doesn't exist yet to gain consent if done in real life, then likewise I argue that it's impossible for them to achieve true consent regardless of what is defined in legal jargon.

Likewise, one can also argue that viewing a person in media is a non-consensual interaction in and of itself, akin sociologically speaking to voyeurism. As when done in the flesh, the individuals are interacting directly, while when viewing media there is no interaction, merely a viewer 'acting' on another. 

Why wouldn't the right to contract override that?  If somebody signs an agreement acknowledging that the film will be distributed -- with no means of 'curation' -- on what basis is that contract invalid?


Allegedly on the basis that consent is impossible to gain, therefore a written contract can't override the objective realities of consent. Much as if an adult solicited sex from a 14 year old via contract, the recognition of their inability to consent to begin with would override the contract.

You're just arguing for anti-piracy laws.

There's no case to be made on consent.  Consent is an existing legal doctrine.  To undermine the ability of a porn actress to give consent, you would have to prove incapacity or lack of agency.  Meaning that she didn't have the mental capacity to consent or sign a contract -- for instance, if she was mentally retarded, demented, incoherent, insane, or intoxicated.  Or, that she was underaged, and thus lacked the statutory authority to consent or sign a contract.

That's it.  Otherwise, she has the right to give consent.  She has the right to sign a contract.  Rolling back those rights would face serious problems with the equal protection clause of the 5th and 14th amendments.  We're talking 15th century stuff here ... where women are considered too mentally unsophisticated to sign a contract.  Absolutely no chance that ever passes, nor that it holds up to any Constitutional scrutiny at all.

Beyond that, you still have the "expectation of privacy" problem.  If a woman strips naked in the middle of the street in broad daylight ... you can't charge every poor asshole walking down that street with voyeurism.  She had no expectation of privacy.  They were on a public street.  They had the right to look at her, naked or not.  Same principle, just videoed and knowingly distributed on the public internet.

In the case of porn, not only is there no reasonable expectation of privacy ... there's actually an explicit expectation that the recording is going to be distributed.  She doesn't expect privacy.  She expects publicity.  She consented and signed the contract with that understanding.  Meaning, it can't be criminal voyeurism.

These backdoor legal technicalities are so fraught with problems that they're more hairbrained than just going the outright censorship route, without all the 'consent' theatrics.  Obscenity laws are still very Constitutionally shaky ... but less so than all this.  At least there you can make the 'original intent' argument with regard to the drafting of the first amendment -- that it was intended to protect political speech, not pornography.  You have no such Constitutional basis for revoking the right of grown women to sign contracts to appear naked on film.

JB

There's no case to be made on consent.  Consent is an existing legal doctrine.  To undermine the ability of a porn actress to give consent, you would have to prove incapacity or lack of agency.  Meaning that she didn't have the mental capacity to consent or sign a contract -- for instance, if she was mentally retarded, demented, incoherent, insane, or intoxicated.  Or, that she was underaged, and thus lacked the statutory authority to consent or sign a contract.

That's it.  Otherwise, she has the right to give consent.  She has the right to sign a contract.  Rolling back those rights would face serious problems with the equal protection clause of the 5th and 14th amendments.  We're talking 15th century stuff here ... where women are considered too mentally unsophisticated to sign a contract.  Absolutely no chance that ever passes, nor that it holds up to any Constitutional scrutiny at all.

True, arguing against the private production of it would be different, however one could argue that giving consent to anonymous viewers via mass-distribution platforms is impossible.

Beyond that, you still have the "expectation of privacy" problem.  If a woman strips naked in the middle of the street in broad daylight ... you can't charge every poor asshole walking down that street with voyeurism.  She had no expectation of privacy.  They were on a public street.  They had the right to look at her, naked or not.  Same principle, just videoed and knowingly distributed on the public internet.


True, but while you couldn't charge the viewers with voyeurism, in most cases the individual would be charged with indecent exposure, so one could make a case for applying the same principles to public internet, and therefore regarding the distribution of publication of it via the internet as indecent, and therefore not legal, and potentially charging those who do so.

In the case of porn, not only is there no reasonable expectation of privacy ... there's actually an explicit expectation that the recording is going to be distributed.  She doesn't expect privacy.  She expects publicity.  She consented and signed the contract with that understanding.  Meaning, it can't be criminal voyeurism.

These backdoor legal technicalities are so fraught with problems that they're more hairbrained than just going the outright censorship route, without all the 'consent' theatrics.  Obscenity laws are still very Constitutionally shaky ... but less so than all this.  At least there you can make the 'original intent' argument with regard to the drafting of the first amendment -- that it was intended to protect political speech, not pornography.  You have no such Constitutional basis for revoking the right of grown women to sign contracts to appear naked on film.

Yes, arguments such as original intent are worth considering; in this case however the arguments are that:

1. If the internet is a public medium, then much like stripping naked in a public square would be an indecency charge, allowing the publication of pornography on publicly accessible internet is as well, though simply producing it in private (much as "being naked" in one's own home) would not be.

2. Contracts which give consent for unlimited distribution to anonymous individuals via platforms such as the internet are not valid, since while it's possible to give consent to individuals in regulated mediums (such as a specific interaction between a phone sex operator and a client), it's impossible to do so in mediums such as the internet, where it can be viewed and distributed in an unlimited context with no means of determining who views it or when.

Now you are back to having to show a distinction between a movie distributed on the internet, versus pornography - from a consent/distribution model. 

I think you're confusing "arguable" with "meritorious".  That "one could argue" all kinds of things doesn't mean the arguments have any merit.  There is no legal basis for your consent argument.  One could argue.  But, one would lose.


You're flat wrong on a lot of this.  Contracts that consent to unlimited distribution to anonymous viewers are entirely valid -- and are the basis of the entire modern music, TV, and film industries.  There is no legal precedent or statutory basis for undermining contracts on those grounds.  Nor could one get passed (Hollywood would riot).  Nor could it survive Constitutional challenge if it were (see Lochner v. New York; freedom of contract has been established and incorporated into the liberty and property clauses of the 5th and 14th).  Dead in the water.


On indecent exposure -- you're moving the goalposts here -- there could be a more reasonable basis.  A better analogy than the public street would be strip clubs.  These are private websites, voluntarily accessed ... not public streets.

There is some history of charging indecent exposure in strip clubs ... particularly in topless clubs where strippers get caught flashing more than their topside, for instance.  I could see how an enterprising DA could charge a pornographer with indecent exposure.  I don't see it working, but I could see it happening.

You have quite a few problems with regard to what law applies, though (problems you don't have with an actual strip club).  Indecent exposure laws are not federal -- and cannot be federal.  They're State laws, at best.  And, sometimes local ordinances.  If the porn is made in California and somebody watches in Utah, where did the crime take place?  Who brings charges?  And, again, who's the victim?  Who's going to testify?  How would a District Attorney even know to bring charges, and who against?  You'd have to monitor internet usage.  How would you get a warrant to do so?  Stings, I guess.  Seems like a lot of resources ... but not impossible, I suppose.

Good luck with that.  Again, lots of problems.

JB

I think you're confusing "arguable" with "meritorious".  That "one could argue" all kinds of things doesn't mean the arguments have any merit.  There is no legal basis for your consent argument.  One could argue.  But, one would lose.


You're flat wrong on a lot of this.  Contracts that consent to unlimited distribution to anonymous viewers are entirely valid -- and are the basis of the entire modern music, TV, and film industries.  There is no legal precedent or statutory basis for undermining contracts on those grounds.  Nor could one get passed (Hollywood would riot).  Nor could it survive Constitutional challenge if it were (see Lochner v. New York; freedom of contract has been established and incorporated into the liberty and property clauses of the 5th and 14th).  Dead in the water.

True, so in regards to this, I would have to do more research; however that which is defined as music, film, etc is presumed to be "art", while that which is pornography would not be "art", so I'm thinking that in regards to art, reasonable exceptions could be made regarding mass distribution, but not in the case of pornography, though I'd have to research the details of this.

On indecent exposure -- you're moving the goalposts here -- there could be a more reasonable basis.  A better analogy than the public street would be strip clubs.  These are private websites, voluntarily accessed ... not public streets.

In that regard, it'd be worth looking into; I'm thinking an argument could be made that anything accessible via a public search engine could be defined as 'public' whether it's hosted on a private website or not.

Likewise I'm also under the impression, that while not on a federal level, state and/or local levels have the ability to regulate where adult entertainment can be distributed even in private, and that therefore regulations of a similar nature could be applied to the internet.

There is some history of charging indecent exposure in strip clubs ... particularly in topless clubs where strippers get caught flashing more than their topside, for instance.  I could see how an enterprising DA could charge a pornographer with indecent exposure.  I don't see it working, but I could see it happening.

You have quite a few problems with regard to what law applies, though (problems you don't have with an actual strip club).  Indecent exposure laws are not federal -- and cannot be federal.  They're State laws, at best.  And, sometimes local ordinances.  If the porn is made in California and somebody watches in Utah, where did the crime take place?  Who brings charges?  And, again, who's the victim?  Who's going to testify?  How would a District Attorney even know to bring charges, and who against?  You'd have to monitor internet usage.  How would you get a warrant to do so?  Stings, I guess.  Seems like a lot of resources ... but not impossible, I suppose.

Good luck with that.  Again, lots of problems.

That is true to an extent; as far as the laws being state rather than federal; however as far as FCC jurisdiction goes, I'm not an expert, and I believe there are legislative proposals to regulate the internet as a communications platform, a la TV.

And under the arguments here, it would be the individual website owners who would be criminally charged for the distribution, not the individual viewers or actors, which would be much easier to do; I believe the Communications Decency Act has complicated this to some extent in regards to the posting of content by anonymous users of social media.

"True, so in regards to this, I would have to do more research; however that which is defined as music, film, etc is presumed to be "art", while that which is pornography would not be "art"(...)

a) The laws JB mentioned regarding the distribution of music, film (etc.) does not only apply to "art"; it applies to content and intellectual property, that is not necessarily art, in various forms and formats of media.

b) Your opinion is that pornography is not art. It is not a fact that pornography is not art.

"In that regard, it'd be worth looking into; I'm thinking an argument could be made that anything accessible via a public search engine could be defined as 'public' whether it's hosted on a private website or not."

The argument could be made but it's a bad argument. That's like saying that a stripper could be charged with indecent exposure if you knowingly chose to walk into a strip club. In fact, even if you unknowingly walked into a strip bar, the strippers wouldn't get charged with indecent exposure.

"Likewise I'm also under the impression, that while not on a federal level, state and/or local levels have the ability to regulate where adult entertainment can be distributed even in private, and that therefore regulations of a similar nature could be applied to the internet."

Remember Jack's example from before and think practically. If a porn video gets produced in Canada, and your local municipality has banned the distribution of porn, and a local citizen gets caught watching said porn, who is the criminal? The producer/distributor. In Canada. Is city hall going to spend local taxpayer money on trying to get a Canadian porn producer extradited to the USA for a local trial (since it's a local issue)? Is that a good use of local taxpayer money? Furthermore, if the porn producer/distributor is hosting the porn on Canadian servers, and doing so is legal in Canada, then they've actually broken no laws. They didn't distribute the porn in your local municipality; someone from your municipality accessed a Canadian server and requested/procured the porn. So does that actually makes your local citizen the criminal. Do you think it's an appropriate and productive use of municipal resources to criminalize the viewing of pornography? Is that the kind of authority and power we want local politicians to have?

"That is true to an extent; as far as the laws being state rather than federal; however as far as FCC jurisdiction goes, I'm not an expert, and I believe there are legislative proposals to regulate the internet as a communications platform, a la TV.

And under the arguments here, it would be the individual website owners who would be criminally charged for the distribution, not the individual viewers or actors, which would be much easier to do; I believe the Communications Decency Act has complicated this to some extent in regards to the posting of content by anonymous users of social media."

Dude. Seriously. Think about it. If there was an actual crime being committed here, one that the FCC could do something about, you don't think that they would have put television porn producers / distributors / channels in jail by now?

Even if it is banned locally/nationally; how is it really enforced? Porn is banned in Indonesia. You cannot open a porn website on the internet there. Unless you use a VPN and access it through an IP address in another country (maybe Malaysia). So even if it is banned and controls are in place to prevent casual viewing, it is still accessable without too much effort.

And, again in that scenario, the "criminal" is not the California porn company that made the video and hosted it on its site. It's the Indonesian viewer of the pornography.

"1. One argument is that an actor in a pornographic film doesn't have the physical ability to consent to being viewed by strangers on the internet, therefore a 'contract' of consent to a porn company is null and void; and a person viewing a stranger in a sexual situation would typically be criminally charged under laws such as voyeurism laws; therefore viewing internet pornography is the same as voyeurism, and therefore could be made illegal to view or distribute."

That's a bad argument for a few reasons:

Porn actors do indeed have the ability to legally consent. And they regularly do. And the contracts are perfectly valid. That's how the industry works and the law works.

Viewing internet pornography isn't the same as illegal voyeurism because the internet pornography was legally produced for the purpose of viewing by individuals other than the actors. It's a bit like saying that reading someone's personal diary is a violation of their privacy. It most certainly is, if you don't get their permission. But one of the best selling books of all time is "The Diary of Anne Frank" and I assure you that no one is breaking the law by reading that book.

"Likewise, an argument could be made that producing or viewing pornography violates the property rights of one's body, and while legally a body is one's living property, much like a horse one owns, one isn't legally allowed to do "anything" they want to it in practice; for example one can't legally give a person written permission to murder you and have them escape murder charges."

The latter part of your argument generally makes sense but the beginning doesn't. Need an example? If I punch you in the face right now, that's assault; a criminal charge. But if we're both boxers and we legally consent, fully informed, to participating in a sanctioned boxing match, it's not assault and neither of us will be criminally charged. Another example? It's illegal for me to stab you but, if you consented and I was licensed to do so, I could pierce you. Or suture you. Or perform surgery on you.

"So using these facts, a case could be made that producing pornography for the viewing of strangers is permitting them to engage in a property rights violation against one's body, and therefore could be illegal regardless of one's consent."

I disagree. Using my examples above, it's the same reason I don't get arrested on the basis of Good Samaritan laws for sitting back and having a beer while Connor McGreggor beats the shit out of someone in a cage on TV.

"and apparently the trend in the West is to begin cracking down on internet pornography"

I've not heard of this trend. More info please.

"likewise the popularity of 'amateur' pornography seems to be helping to drive commercial pornography out of business"

Actually, it's the opposite. What's killing the traditional porn industry (and I'm including internet porn in here) is piracy. What's saving the industry is adopting the business model and product delivery format of amateur pornography. While porn actors/actresses in the 80s made most of their money through tapes, and in the 90s through DBDs, and in the 2000s through internet, now the shift is towards paid cam girl / live stream work. And it's actually putting more money into the pockets of the talent rather than the studios.

"the more uncultured and sub-literati elements in mass culture"

Ah. You're one of those.

That's a bad argument for a few reasons:

Porn actors do indeed have the ability to legally consent. And they regularly do. And the contracts are perfectly valid. That's how the industry works and the law works.

I'm saying they shouldn't necessarily be considered valid. I mean, in Saudi Arabia a 10 year old girl can potentially legally marry a 50 year old man with parental consent; that's how the law works, but should it?

I disagree. Using my examples above, it's the same reason I don't get arrested on the basis of Good Samaritan laws for sitting back and having a beer while Connor McGreggor beats the shit out of someone in a cage on TV.

That's debatable, given that martial artistry has an artistic element to it, there would be a fine line between watching a martial arts match and something which is purely voyeuristic; must as there would be a line between pornography, and erotica or nude artwork, the latter of which has aesthetic qualities which ad context to the sexual content that distinguish it from pure voyeurism.


Viewing internet pornography isn't the same as illegal voyeurism because the internet pornography was legally produced for the purpose of viewing by individuals other than the actors. It's a bit like saying that reading someone's personal diary is a violation of their privacy. It most certainly is, if you don't get their permission. But one of the best selling books of all time is "The Diary of Anne Frank" and I assure you that no one is breaking the law by reading that book.

That analogy fails, given that the diary of Anne Frank is regarded as having artistic and literary merit, as opposed to being something purely voyeuristic - I'm saying there's a reasonable distinction.

"the more uncultured and sub-literati elements in mass culture"

Ah. You're one of those.

One of those literati? Yes, that's a good thing I'd think, definitely better than being a Caligula or Nero.

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