An excellent comment threads here. To respond to some points:
- First, from the left, Mithras has some good points. He’s right, of course, that this policy involves “censorship”; what I meant is that it wasn’t general censorship of sexually explicit materials per se. (He was also right that I shouldn’t have used the term “age of consent”; to be clear, I certainly don’t advocate a 21-year-old age of consent, and neither does Garance; like Amanda, I read her as wanting to increase the ability of young adults to experiment sexually without worrying about consequences. We should attack these consequences, but they’re there for now.) I also don’t think that it would necessarily violate the First Amendment, unless the 18-year old limitation on distributing materials also violates it.
- I do agree with Anderson that Garance’s specific defense of her remedy is far too close to Kennedy’s reasoning in Gonzales for comfort. (It’s not quite the same because it’s not exclusively applicable to women, but under current restrictions mostly male producers and female participants will be involved.) I don’t think it’s the best argument for her policy, but I do think that any policy premised on the idea that adult women have to be prevented from doing things they’ll later regret is unjustifiable. If there was actual evidence that women in this particular age group were significantly more likely to be harmed by contracts they didn’t give informed consent to, this might be different. But absent such evidence, I reiterate my belief that Garance’s remedy is overbroad and not sufficiently justified by evidence.
- Meanwhile, from the right (or, more accurately, from the left-communitarian) flank, RAF questions both halves of my argument that if the “censorship of porn is necessary it won’t work and if it would work it’s not necessary.” I should say that my argument, like the Canadian Supreme Court, assumes that a liberal democratic state cannot violate free speech merely because sexually explicit materials offend traditionalist mores.
It can protect harms that may come to particular individuals, but in the kind of patriarchal society that would produce large amounts of objectionable porn it is extremely implausible to think that government officials determining what materials are “dehumanizing” would be free from the patriarchal assumptions that largely structure the porn industry, and I believe that the Canadian case bears this out (and why Andrea Dworkin maintained that censorship was a bad remedy.) In a society sufficiently just that we could assume that government officials were immune from such assumptions, it is unlikely that sexually explicit materials would pose enough of a problem to justify state action. Moreover, Atrios is correct that censorship is particularly prone to arbitrary and abusive enforcement because (particularly if the standards are crafted in a way so as to exclude serious literature and scientific works) the standards will always be extremely vague. On that issue, I completely agree with Roy that “[e]xploitation, alas, exists. But this is no reason to fold the tent of liberty.”
…I think this remedy from zuzu is a better one: “Enforce the liquor laws, enable women who regret signing these things while drunk to void the releases later on the basis of being impaired, and require some minimum compensation for the use of their images. IOW, put the onus on Francis, et al. to ensure that the women appearing in his videos did so free from coercion, impairment or a raw deal.” Right. If women are choosing to do these things freely, there’s no reason they have to be drunk or there can’t be “cooling off” laws, etc. More from her colleague Jill.