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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Replies to This Discussion

1. Does an actor in a hollywood film "consent" to have their likeness used in advertising, and the performance of the movie itself? If so, how is that consent different from the consent provided by a porn actor? You would have to make a distinction in the kind of performance (sexual vs ?), rather than the consent question itself, and I'm not sure that would hold up. 

2. What charge would be made in a property rights violation case? It isn't murder - you'd be right back to consent per #1. 

1. So would you extend that prohibition to any sexually compromising situation in a hollywood movie or tv show as well, not just to pornography? And there is certainly an understanding on the part of the person signing their contract that it will be viewed by strangers - it's not like that's a surprise. 


Further, if someone is an exhibitionist and exposes themselves or has sex in public, it is not a crime of voyeurism if someone sees. If anything, this situation is more akin to that crime - but that is predicated on the exposure being an uncontrolled public area (children, etc.). Which is arguably not the case in pornography.  

2. I was unclear - my "it isn't murder" is referring to the pornography. Murder would still be a state issue and prosecuted regardless of consent. The question is, what crime here would be? 

I don't know that either of those make a lot of sense.  Consent would trump both the voyeurism argument, and the bodily autonomy argument.  Consensual voyeurism is not a crime in any jurisdiction.  You're legally allowed to watch people undress, have sex, or do whatever ... if they let you do it.  How would pornography run afoul of that?  Consenting to having sex on camera for distribution to viewers would imply consent (if not explicitly stated) to having it viewed.  Consent doesn't have to be individual, in that case.  I don't see the voyeurism argument holding up to much scrutiny.

And, since consent is the basis of 'bodily autonomy' ... denying porn stars the ability to consent to having themselves filmed would, arguably, be more offensive to their bodily property rights than would be viewing the movies they consented to.  You are denying them the use of their own property for their own benefit.

As for the 'murder' thing ... in some cases, 'consent' is a defense -- or at least mitigating -- to what would otherwise be murder.  Suicide by cop is not a crime (for the cops).  What is that besides someone, by their actions, consenting to being murdered by the cops?

We allow hospitals to refuse treatment to people who have consented to having the plug pulled or DNRs.  Some jurisdictions allow assisted suicide.  There was a guy in Germany that murdered and cannibalized some dude in some weird gay cannibalism fetish ... and was convicted only of manslaughter, not murder (thus, mitigating).  There was another in Maryland that consented to torture and strangulation ... and, again, the guy got manslaughter, not premeditated murder (again, mitigated by consent).

Consent tends to matter in these kinds of questions.


JB

"It isn't physically possible to give consent to a stranger via the internet, therefore unless the individual viewing it is someone with whom you have direct, face-to-face interactions, then I see no reason to acknowledge consent."

But that's not how that works. Porn is a legal performance (like any other type of performance). In order for a porn company to distribute a recording, they need the written consent of the actors. They get that via a contract. The terms of the contract stipulate whether or not and how the porn company can distribute the recording. These contracts generally stipulate that, in exchange for X$ in payment and Y$ in royalties, the porn company owns the rights to the recording and is free to distribute, broadcast (etc.) the video as they please. By signing this kind of contract and accepting the payment, the porn actors legally agree to let anyone/everyone see the video without requiring 1-on-1 consent; they've de jure given that consent en masse and waived their right to further compensation or to damages by signing the contract.

"Well objectively I'd say it's not to their benefit, but their objective detriment, though they may lack the judgment to discern this - and under the same logic that one cannot request certain harmful acts to the body, such as legally hire a hitman to murder themselves, then one could make a similar case with pornography."

Except that unlicensed killing is illegal whereas legal pornography is, well, legal.

There is no legal definition of 'consent', as far as I know, that speaks to physical presence.  Cam-whores give explicit legal consent to strangers over the internet all the time.  Phone sex operators have given consent to strangers over the phone for decades.  Hell, if you want to take the 'business' motive out of it ... people have phone sex, chat sex, and webcam sex with strangers all the time.  Under what legal theory of consent are those encounters not-consensual?

With regard to the "to their detriment" argument -- that's not a bodily property rights argument anymore.  It's a nanny-state argument.  You're overriding their ability to consent because you think the State knows better.  Not sure what would give you that idea.  The State generally sucks at this kind of decision-making.

Your real problem here is ... who's the victim?  And, who's the criminal?  Who are you protecting?  From whom?

On your "voyeurism/consent" theory, the criminal would theoretically be the viewer and the victim would be the the performer.  You'd have to pass a law specifically invalidating the ability of a grown woman to consent to sex if there's a camera in the room.  Similar to statutory rape laws, I guess.  Expect riots.

You could then charge the viewer with statutory voyeurism.  But ... I don't see how a case gets made.  Child porn laws center on kids inability to consent due to lack of agency.  You'll never get a law passed invalidating the ability of grown women to consent to sex like that.

You'd probably have better luck just saying "porn is bad, so should be illegal".  Monkeying with the ability of free adults to consent to sex would cause much more problems than it sounds ... and would get struck down faster than you could write it.

On the 'bodily property' theory ... I can't even figure out who you're charging with a crime here.  The other actor?  If the girl is the victim, and you're overriding her consent to save her from herself ... her co-star would be the one that extra-consensually penetrated her.  But ... you'd be overriding his consent as well, so she also had sex with him absent consent.  So ... mutual rape?  With no victim?

The producer?  The cameraman?  The viewer?  The performers?  Who's the criminal?  What do you charge them with?  To protect whom?  And ... who's going to testify?


JB

To me, there is a very big difference between posting (1) a video which has been approved by the persons who are appearing and (2) a video taken secretly without the persons who are appearing knowing about it.

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.

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

JB

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

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

"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?

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