Consent and Censorship

There has been a lot of interesting discussion of Garance’s WSJ op-ed about raising the age of consent in the porn industry. I should say that I share Avedon and Roy‘s general libertarian perspective on the issue and probably end up in the same place as they do, but I think they’re being a touch unfair to Garance’s argument. Certainly, I agree (even leading aside the question of whether obscenity should be excluded from First Amendment protection, which has never been very persuasive to me) that if the censorship of porn is necessary it won’t work and if it would work it’s not necessary. Canada’s experience with R. v. Butler–in which a Supreme Court decision permitting censorship of sexually explicit materials only on explicitly feminist grounds was used primarily harass gay and lesbian and feminist bookstores–is instructive. Roy also makes a good point about how “[p]opular R-rated giggle-fests from Porky‘s to the American Pie movies are, to me, dirtier than a typical porn film, because they posit sex as something you get away with, like theft or vandalism,” although as Neil reminds us a lot of porn (which simultaneously celebrates and punishes female sexual expression) has a similar ethos.

Still, while I agree with these arguments on their own terms I think they’re a little unfair to Garance’s argument. She is not, after all, really advocating censorship; even the most hardcore civil libertarian, I think, recognizes the need for an age of consent, and whether this (inherently somewhat) arbitrary line should be drawn at 18 or 21 is surely debatable without threatening a slippery slope to Comstockery. The fact that Garance would exempt people whose images are sold from punishment would avoid the obvious problems that make, say, bans on prostitution so counterproductive. I’m still not convinced by Garance’s argument–I would need to know more about how much more likely 18 year-olds are than 22-year-olds to regret decisions to appear in sexually explicit material, whether it could be effectively and non-arbitrarily enforced (I would definitely oppose the policy change if Garance was right that it would be observed in the breach), and I would also prefer to try to more narrowly regulate coercive commercial exploitation before taking a larger step–but I don’t think increasing the age of consent for commercial use of sexual images is an attack on fundamental civil liberties.