July 27, 2009

The Target of Illegality

Justin Katz

Andrew (not Morse) joins the intraconservative conversation about bringing Rhode Island back in line with the rest of the country by making prostitution explicitly illegal:

Justin, I agree with Dan on this. You can't legislate morality. There's a reason that prostitution is known as the oldest profession. Even Christ hung out with a hooker. And though it may be that most every country/state bans it, it still occurs.

Drugs, same thing; make them legal and you eliminate half the income for organized crime and gangs. I smoked pot and worse when I was younger. Did I deserve to go to jail? No. And all arresting me would have done is make some lawyer's bottom line better while costing the state money. And if your child used drugs and was caught, wouldn't you do everything you could to keep them out of jail?

The point is that if people want to behave in ways that are damaging to themselves, society can't stop them.

An excellent example is my 18-year-old stepson who went through high school with what had to be an almost conscious desire to fail. Nothing his mother or I did would deter him from that path. So we told him that when his peers graduated he was out the door, no matter what. He was shocked when we followed through.

When he comes back in a year, he has to have a job and pay rent. That rent will be less if he's going to school, but there's no more free lunch.

First of all, the cliché that we "cannot legislate morality" is inaccurate. Consider the infrequency with which swear words wind up on public television; that's because the cost of slipping far outweighs the meager benefit of doing so, and the chance of being caught is high. What Andrew uses the phrase to state is that the market of losers and Narcissists who will seek to pay for sex even when the price goes up, and the supply of women willing to be sold at that higher price, will continue to exist. I don't dispute that, although I think it would be foolish to declare that legality increases the market by lower the price, including the prices of risk and stigma.

But Andrew misses the same mark as other commenters: It is not my objective to ensure that a particular person does not buy sex from another particular person. If that were the case, an inadvisably extensive police effort would be required. Rather, my objective is to foster a society in which sex is not considered to be a salable good. That, of course, has the ancillary effect of keeping particular people from pursuing the transaction, but it is neither the focus nor the primary motivation.

In the balance of things, I believe that the principle of freedom outweighs the principle of sexual morality when it comes to public policies regarding private behavior. Indeed, sacrificing the former in the name of the latter proves counterproductive for everybody involved. However, a sufficient firewall exists between engaging in sex and selling it that prostitution needn't be maintained as a barricade protecting more mundane freedoms (in the way folks argue that pornography must be maintained to protect more important freedoms of speech).

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"Consider the infrequency with which swear words wind up on public television; that's because the cost of slipping far outweighs the meager benefit of doing so, and the chance of being caught is high."

The prostitution topic, while interesting, has already been discussed at length and you know how I feel about it. I respect your opinion and agree to disagree there.

However, I will say that I look at the example you give as direct evidence of the opposite proposition that Andrew was giving, i.e. that attempting to legislate morality is ultimately futile or counterproductive. You point to the fact that television is currently censored and has been for some time as evidence of success. But this is an overly simplistic analysis and ignores comparative analysis over time, and the clear trend that has emerged under these regulations. If the purpose of censorship is to keep "harmful" content (negative effects of viewing this content are totally unproven and speculative, I might add) from reaching the public airwaves, then the history of television censorship has been a miserable failure overall. The government has been attempting to regulate television ever since there has been television, and what has happened as a result? Individual channels have pushed the envelope at every chance with new words, scenes, and stunts to try to meet the insatiable black market demand for the "immoral" content, whether it is sex, swear words, drug use, or violence. These bans have only glamorized and publicized the material by making them forbidden fruit. All the while this is going on, we have alternative pay channels like HBO, Showtime, and Playboy Channel making a fortune skirting the regulations and creating high quality content at the same time. Compare television today with television from the 60's, or even from the 90's. The government's quaint little moralistic bans "for our own good" haven't stopped anything. They've just served as a few shallow sandbars against the overwhelming tide of public demand for that kind of content. People ultimately resent being treated like infants and rebel against these kind of restrictions at every turn. And then when they do get access to the content and realize that they are none the worse off for it, they realize that they have been lied to and lose respect for the role of government and the legal system in general. How many times have we heard people say "pot is illegal too" as an example of why breaking some other law is okay in an individual's eyes? I myself don't smoke pot, but I can see firsthand the overwhelmingly negative effect that the marijuana ban has had on public opinion on the justice system as a whole. Prostitution laws and other victimless crimes (whether you agree with that characterization or not, that is how they are widely perceived) will always have the same null or counterproductive effect on public opinion. People are going to get their fix no matter what, the only difference is how much they resent you after they do and how much collateral damage you do to them as they are in the process of obtaining it.

Posted by: Dan at July 27, 2009 9:42 PM

Are you hypothesizing that vulgarity on television would be less without the censorship? I'd find that difficult to believe.

But that's not really the point. Society settled on the moral principle that public television should not give voice to curse words, and there have been remarkably few. Think what you want about the attempt, and judge it against the cultural tide as you like, but the moral principle has successfully been legislated. That was my narrow point.

Posted by: Justin Katz at July 27, 2009 10:37 PM

I don't know what stations you're watching that have "remarkably few" curse words. I hear vulgarity or see sex or violence scenes that would have been unimaginable even 10 or 20 years ago nearly every time I turn on the television at night. And at that time, as a child, I remember seeing and hearing things on television that would have been unimaginable in the 1960's and 1970's. As a reminder of where we have been, the controversy around Clark Gable's use of the word "damn" in Gone With the Wind seems laughable by today's standards, but the word had been censored in films at the time. I guess the point I'm trying to make is that censors have been drawing lines in the sand for as long as film and television have been around in the name of the public well-being (also without scientific basis in their own respective periods), and each time it has only resulted in a race between competing networks for who can break the rules first and make the most amount of money in the process. Eventually, each time, the moralists had to concede the fight and adjust their standards downward to keep from having a full-scale public revolt on their hands through market action. To think that any sort of ban of this kind can be maintained indefinitely, or that we will not be hearing the s-word regularly on television in the next 10-20 years despite the "ban" today is delusional. Most people don't really believe in the heart of hearts that these victimless offenses or content crimes are really scarring people, and either consciously or subconsciously they resent being restricted and yearn to be free to see what they want to see and decide for themselves. Would there be less "immoral" content on television absent any restrictions? Difficult to say, perhaps yes, perhaps no. But we will end up in the same place regardless, just as pot will inevitably become legal and our society has become more sexually permissive with each passing decade, despite all the laws and bans thrown up against the tide. There is no doubt in my mind that someday prostitution will be legal in this country as well. I don't take any delight in that reality, but I don't see the point in throwing people in jail over the inevitable either, especially when it involves purely consensual conduct on its face. God may make his own judgments upon those who engage in any of these behaviors, but as long as it is not infringing upon my own rights and I am not actively contributing to the behavior, it is no reflection upon me and I will not lose any sleep over it. As I take responsibility for my own choices, so can those individuals take responsibility for their own. If it is truly as self-destructive as you contend it is, then perhaps what they will suffer is punishment enough without spending months or years locked in a jail-cell playing cards and reading old magazines instead of supporting their families or taking care of themselves instead of relying upon the state to house, clothe and feed them. Again I ask, isn't government big enough already without allowing it this additional regulatory and punitive power over our private lives?

Posted by: Dan at July 28, 2009 12:20 AM

So Britney Spears singing "...all the boys and all the girls are begging to If You Seek Amy" 24/7 on the radio is a success of censoring the public airwaves? While she is not saying "THE word, the big one, the queen-mother of dirty words, the 'F-dash-dash-dash' word!", her point is not being lost on those impressionable ears that listen to her music.

Dan is right. There has been so much end arounding of the censorship laws that they have been proven to be futile.

Posted by: Donald Botts at July 28, 2009 11:48 AM

As my grandmother once said about prostitution "That's a business? You sell it and you still got it".

I am puzzled about the time devoted to "legislating morality". Why don't we begin at the base? Why is prostitution immoral?

The same goes for drugs. Why is that "immoral" and alcohol is OK? (granted alcohol is regulated, but the punishment attached concerns the harm, or possible harm, to others. The imbibing itself is not punished.) This is a serious question that has to be answered before the argument may advance. Anyone who has read "The Adventures of Huckleberry Finn" knows the evils of alcohol.

I grew up in a small, Protestant, town; where only one family was known to have wine with dinner. The rest of us were sure that they were secret "winos".

Posted by: Warrington Faust at July 28, 2009 12:20 PM

To those making the point that is unproductive to make laws on what would be called ‘moral’ issues’.

What is the line you draw between a moral issue and a ‘safety’ issue?

First, regarding the vulgarity on TV, the issue and effect of the law is not to prevent or even discourage vulgarity/nudity-call-it-what-you-want. It is to limit where it can be obtained. Vulgarity and nudity are not illegal in and of itself, but there are laws as to where it can be shown. Do you think what is shown on pay channels should be available on all channels? Yes, the lines have been moved and the envelope is always being pressed. But that is not the issue here. The issue is whether it is appropriate that government regulate public content versus private or pay-for content. Should we be able to walk around nude? There is no inherent victim is there? Despite having freedom of speech, there are laws against yelling fire in a crowded room.

For the record, I do think there are good arguments in favor legalizing drugs and prostitution. I also see the side of wanting to discourage those activities. Those questions are worthy of a debate as to where to draw the line between freedom and public government regulation. But to call regulation of public content a failure and is futile because it has not reduced vulgarity in society is 1) incorrect and 2) misses the point of it.

There is no country I am aware which has no regulations on public behavior. There are some legal standards everywhere.

Posted by: msteven at July 28, 2009 1:35 PM
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