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January 17, 2013

Does four years seem just and effective as federal sentence for high-profile obscenity convictions?

The question in the title of this post is prompted by this Los Angeles Times report on a lengthy and high-profile federal prosecution.  The piece is headlined "Maker of porn films gets 4 years in prison in federal obscenity case," and here are the case specifics:

A Los Angeles-based creator of pornographic fetish films was sentenced to four years in federal prison Wednesday for producing and selling obscene material.

Ira Isaacs, 61, received the sentence after a six-year prosecution that included two mistrials and led to the public admonishment of federal Judge Alex Kozinski, who recused himself from the proceedings after a Times investigation found that he placed pornographic images on an Internet server that could be accessed by the public.  Kozinski is the chief judge of the U.S. 9th Circuit Court of Appeals.

Doing business under the name L.A. Media, Isaacs produced, starred in, and distributed pornographic films through a website he advertised as "the Web's largest fetish VHS, DVD superstore."  Some of his films, which depict bestiality and sexual situations involving human excrement, were shown to the jury during his third trial last April.

Although the defense argued that Isaacs' work was protected by the 1st Amendment, there was a general consensus about the appeal of the films, which had titles such as "Hollywood Scat Amateurs No. 7."

"They were so disgusting I couldn't even watch them," said Isaacs' attorney Roger Diamond, who said he averted his eyes and read a book as the 90-minute films were played in court. "But that doesn't mean they're not free speech."

Isaacs said his films were supposed to shock and disgust people in a way that deconstructs their conception of art. He turned down a plea bargain that would have saved him from incarceration and said he had no regrets. "It makes people think, 'What is art? Can art be gross?' " he said....

Prosecutor Michael Grant said Isaacs had never mentioned artistic intentions until he was in front of a court. "Since 1999, he has operated a business with one goal in mind: make money off of individuals that enjoy sick materials," Grant said in court.

Diamond asked the judge to lighten the sentence to probation because he said Isaacs had accepted responsibility for his crimes. But Judge George H. King, who presided over the case, said Isaacs had sought to "cloak himself" in the 1st Amendment with a "cynical post-hoc justification" and was not "a defender of the 1st Amendment."

Addressing Isaacs directly, King said, "You are an abuser of the 1st Amendment. You cheapen the 1st Amendment." King said that because Isaacs continued selling the films, even plugging his website on a radio show two days after his conviction, incarceration was a necessary "deterrent." Isaacs must also pay more than $10,000 in fines, as well as submit to community supervision for three years after his release from prison.

Isaacs was asked to report to federal authorities by Feb. 19, but he plans to file an appeal. Clad in a fedora and a baggy gray suit after the sentencing, he appeared unfazed by the prospect of prison time. "That's the Academy Award I just won in there," Isaacs said. "That's an artist's dream."

In other press accounts of the sentencing, I have seen reported that the statutory sentencing range in this case was 0 to 20 years of imprisonment. And an extended account of the sentencing via this adult industry news website xbiz.com indicates that the four year sentence was a below-guideline sentence because, it appears, the calculated guideline range was 51 to 71 months.

January 17, 2013 at 10:56 AM | Permalink

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Who really cares what this guy gets....So hopefully they collected and destroyed all of grandeous movies.....Maybe he can go live with the dog Lover from Yesterday.....Deserve each other...

Posted by: Midwest Guy | Jan 17, 2013 12:50:37 PM

cute!

"Ira Isaacs, 61, received the sentence after a six-year prosecution that included two mistrials and led to the public admonishment of federal Judge Alex Kozinski, who recused himself from the proceedings after a Times investigation found that he placed pornographic images on an Internet server that could be accessed by the public. Kozinski is the chief judge of the U.S. 9th Circuit Court of Appeals."

So six years and two illegal retrials later. He's now serving an illegal sentnece!

Posted by: rodsmith | Jan 17, 2013 1:14:31 PM

What a complete waste of taxpayer money.

Posted by: AnonymousOne | Jan 17, 2013 1:39:36 PM

Judge Alex Kozinski did not place "pornographic images" on an Internet server accessible by the public. His son misconfigured a home network server and it was accidentally accessible and someone broke in by playing around with different potential urls on his network from the Internet. You have to really dig beneath the soundbites to learn this though.

Posted by: George | Jan 17, 2013 6:17:58 PM

"That's the Academy Award I just won in there," Isaacs said. "That's an artist's dream."

great line, sounds like a very optimistic individual...

Posted by: Tim | Jan 17, 2013 7:01:18 PM

If I recall correctly, the "pornographic images" that were accessible on Judge Kozinski's computer were the same type of "pornography" that you can see on Youtube, Tosh.O, Fark.com, and pretty much any other program or web site that features low-brow, risque, but not pornographic, content.

This prosecution looks like a vanity project by some squeamish prude who can't stand the idea that some people out there--no doubt an exceedingly small percentage of the population--are turned on by scatological pornography. Since he or she can't actually stop people from being that way, the next best thing is to try to limit the availability of materials that cater to those, um, tastes. But this prosecutor also doesn't really understand the Internet, because putting one guy in prison isn't going to make even a tiny dent in the availability. Hell, they've been handing out decades-long sentences like candy for downloading child pornography, and there doesn't seem to be any dearth of potential targets cropping up on a daily basis. At least this Isaacs clown appears to have purveyed pornography made by consenting adults.

What I'd like to know is what the 4-year sentence is supposed to accomplish, other than cost the taxpayers somewhere on the order of $200,000, in addition to all the money already spent on trying this guy three or four times? I guess Mr. Isaacs won't return to his old ways, though I don't know why anyone should care whether he does. But beyond that, it's pretty much a waste of time and money.

Posted by: C.E. | Jan 18, 2013 12:57:05 AM

C.E. --

1. Isn't it a stretch to psychoanalyze the prosecutor when you know zip about him except what you guess?

2. Do you have the same view of the 12 members of the jury? Would you say it's a mite unusual to find that many "squeamish prudes" -- in L.A., no less -- particularly when the defense had a bunch of peremptory and for-cause strikes? But we still got only squeamish prudes on the jury? My goodness.

3. "At least this Isaacs clown appears to have purveyed pornography made by consenting adults."

Why would that make a difference? Hey, look, we still have a First Amendment. I mean, good grief, I hope you're not a squeamish prude.

4. "What I'd like to know is what the 4-year sentence is supposed to accomplish, other than cost the taxpayers somewhere on the order of $200,000, in addition to all the money already spent on trying this guy three or four times?"

The defendant made a ton of money peddling this garbage, and the court legally can and should order a fine/restitution/cost-of-prosecution large enough so that the taxpayers won't wind up losing a dime.

Posted by: Bill Otis | Jan 18, 2013 2:59:40 AM

"The defendant made a ton of money peddling this garbage, and the court legally can and should order a fine/restitution/cost-of-prosecution large enough so that the taxpayers won't wind up losing a dime."

Sure. Confiscate this man's property because we find it distasteful that he is peddling something to consenting adults that was made by consenting adults. Makes perfect sense.

I'm not disagreeing that our laws permit such a prosecution. I am, however, disagreeing that these laws are good policy. I don't see what, if anything, they accomplish. Nor do I see why we confiscate this material and prosecute the peddler but permit far more toxic material (i.e., homophobia, racism) to be propagated. The answer is that we have an arbitrary distinction between words and images, such that harmless images that some (but not all) find distasteful justify (in the minds of some, but not all) the deprivation of years of a person's life and liberty, whereas unquestionably harmful rhetoric goes unpunished.

Other than your disgust, or those of the jurors--and I take it none of you were forced to watch this material--what is the harm? Or are we simply creating a culture of victims--much as the left is accused--of people who cannot stand the idea that others choose to exercise their discretion to watch and produce certain material? These victims get to spend my taxpayer money ridding private parties of materials that disturbs them. But we cannot subsidize the arts.

AO

Posted by: AnonymousOne | Jan 18, 2013 3:10:54 AM

AO --

First, C.E.'s objection was that this prosecution, and now the jailtime, was going to cost the taxpayers $$$. I pointed out that this was not so, because the defendant made way more than enough for the court to order taken to defray essentially all taxpayer costs. I note that you don't deny any of that (and neither has C.E.).

"Nor do I see why we confiscate this material and prosecute the peddler but permit far more toxic material (i.e., homophobia, racism) to be propagated."

Because saying "I don't like blacks" and "I don't like gays" is protected by the First Amendment, and this filth isn't. You might find that "arbitrary," but the Supreme Court, including its liberal justices, doesn't.

"Other than your disgust, or those of the jurors--and I take it none of you were forced to watch this material--what is the harm?"

Other than disgust, what's the harm in some fellow's buying a puppy, taking it to his basement, and starving, beating, terrorizing and torturing it to death? And then doing the same thing again and again? After all, it's his property, and no consenting (or unconsenting) adult is harmed.

Here's the harm: It's vile, inhumane and debasing, and outside the limits of civilized behavior we have a right to impose, by coercion is necessary. If you think otherwise, fine, go for it. How much support do you think you'll get for the Campaign To Support Cruelty?

Posted by: Bill Otis | Jan 18, 2013 2:12:45 PM

Bill,

1. I don't disagree that current precedent permits seizure of this man's assets. I take issue with this prosecution as a matter of economy, policy, and political philosophy.

2. I agree the First Amendment protects offensive speech and much offensive writing but not an offensive picture, even if the picture is far less offensive. However, I--and many First Amendment scholars and political philosophers--find this distinction arbitrary or unreasonable.

3. Your example may be completely inapposite. I don't know the content of these videos. If they showed animals being harmed, and animals in fact were harmed, this fellow should be prosecuted. But I would think there were animal cruelty laws that could accomplish that. In any event, you merely fight the hypothetical. If animals are not harmed, what is the harm? Your counterfactual offers none.

Can I take it by your answer, then, that you would agree that if animals were not harmed, than however filthy or disgusting you might find this material, there would be no good policy reason to incarcerate people for it, especially when we do not incarcerate other people for saying things that are even more offensive?

Also, these laws, in the hands of the right jury, could easily be used to prohibit the sale of hunting videos, which often depict the agonizing and completely unnecessary killing of animals. I suppose that is a sufficient harm that most conservatives would deem worthy to avoid. But that is a separate issue.

AO

Posted by: AnonymousOne | Jan 18, 2013 2:20:49 PM

AO --

You might have missed it, so here's the harm: Torturing animals is vile, inhumane and debasing, and outside the limits of civilized behavior, even though it harms no particular human being, and, indeed, even though some people like doing such things. And why do you support animal cruelty laws? Aren't they exactly the kind of stuff that only do-gooder busybodies (or "squeamish prudes") would object to? Not a single fellow citizen is harmed by whipping a dog in the privacy of your own basement. Aren't animal cruelty laws the cat's paw of the Police State?

When you find someone in this country, ever, who went to jail for producing a hunting video, please cite the story. When such a thing has never happened, I think you know that fanatasizing that it MIGHT happen is just that -- fantasizing.

The gross, vile, degrading conduct described in Doug's post is, however, not a fantasy. I think Midwest Guy had the take on it many normal people would have.

Posted by: Bill Otis | Jan 18, 2013 3:22:54 PM

Bill,

I already conceded in the prior post that if these videos actually involved cruelty toward real animals, that would constitute a sufficient harm. Doug's excerpt says only that they featured bestiality and other sexual acts involving excrement. Thus, I don't know, from this description, whether there was cruelty to an animal. If these videos depicted a person beating a horse, or crushing a high-heel into an animal, there would be cruelty sufficient to constitute harm. Where are you getting information about cruelty? Is it in the linked article?

From your silence, can I assume that you concede that if there is not cruelty, but the videos are still vile and disgusting, there is no harm sufficient to incarcerate adults who choose to view and produce "obscene" materials yet do not force it on anyone? If you don't agree with this proposition, can you articulate the harm.

As for hunting videos, my point was not that there are such cases. My point is that there is a grave consistency problem. Millions of Americans believe that unnecessarily killing animals, often in a painful matter (any non-immediately-lethal bullet would is presumably agonizing) is cruelty. That is not an unreasonable position. Thus, why not incarcerate those that produce such videos? The point is that disgust may be a very poor proxy for actual harm (though I would argue that it is a far better proxy in the hunting video, in which animals suffer and die, than in a video of a man masturbating a horse). The additional point is that incarcerating private activity on the basis of disgust sets a dangerous precedent.

AO

Posted by: AnonymousOne | Jan 18, 2013 3:38:31 PM

As a horse, I can say definitively that I would prefer to be masturbated than to be shot.

Posted by: Mr. Ed | Jan 18, 2013 3:58:08 PM


AO --

My discussion of cruelty to a puppy is a hypo, not factually related to the films in this case. The point is that animal cruelty laws (whether or not the cruelty is filmed) can and do punish behavior that inflicts no harm on the individual doing it, or on any other individual. Animal cruelty is nonetheless a crime, and properly so in my judgment. But it would not be a crime under your no-harm-to-a-consenting-adult theory. So do you disapprove of laws punishing cruelty to animals? If so, how is that consistent with your overall limited theory of criminal liability?

"From your silence, can I assume that you concede that if there is not cruelty, but the videos are still vile and disgusting, there is no harm sufficient to incarcerate adults who choose to view and produce "obscene" materials yet do not force it on anyone?"

From my silence you can assume zip. I am by far the most responsive commenter on this blog, but I don't, and am not required to, respond to everything. When I take a position, I will say so. No one here speaks for me.

As it happens, I have already responded to your question, but not, it seems, in a form you understand. So I'll try again.

Vile and disgusting video displaying obscenity as defined by the Supreme Court is, in my view, sufficient to warrant criminal punishment of its maker. That is because I have a broader understaning of "harm" than you. In my view, something is harmful if it degrades, vulgarizes and cheapens society, notwithstanding that some few sickos may like it.

"As for hunting videos, my point was not that there are such cases. My point is that there is a grave consistency problem. Millions of Americans believe that unnecessarily killing animals, often in a painful matter (any non-immediately-lethal bullet would is presumably agonizing) is cruelty. That is not an unreasonable position."

No, it's not an unreasonable position, but it's nowhere near a majority position, either. Absent First Amendment constraints, the law is perfectly entitled to draw distinctions based on the majority's view of morality or even just aesthetics. For example, I guess there are people who think the age of consent should be 13. But the majority thinks otherwise, and if Mr. X wants to have sex with a 13 year-old, he is going to jail, and properly so, no matter how consenting (or even eager) she may be, and no matter how mature or intelligent.

Majority rules in a democracy. For that reason, it's proper to send both Mr. X and Mr. Isaacs to the slammer. We put up with a huge amount of vulgar, degrading things in this country, but there is nothing in the Constitution or a decent respect for liberty (as opposed to the libertine) that requires us to put up with absolutely everything.

Posted by: Bill Otis | Jan 18, 2013 8:43:20 PM

Bill,

1. When I discussed the no-harm-to-consenting-adults theory, it was in relation to the facts of this case, where actual harm to animals was not relevant. I agree that we should not be cruel to animals. I think they negatively experience pain and suffering and thus should not have it inflicted on them. We thus agree on this point. I'd have articulated my theory of harm differently if I understood that you were referring to a hypothetical in which animals are harmed.

2. With respect to your silence and any presumption on my part from it, I was not trying to force you to respond. You are more than welcome not to. I realize you, like me, don't necessarily want to debate every point. But I'd appreciate if you told me you didn't have the time or desire to respond. You don't have to, but it makes it easier in having a conversation so I don't think you've missed something I said. Had you told me you wished not to address it, I'd have moved on.

3. I don't agree that you articulated this new, more expansive theory of harm in your prior posts. But I appreciate that you have done so now. I think it highly problematic. You say this form of obscene material "cheapens" society. Supporters of this expansive view of harm often use such nebulous terms. Many are used in claims against sanctioning homosexual marriage (I'm not comparing you in any moral way, so please do not interpret in that manner). Like David Boies and Ted Olsen, I have a very hard time understanding what the concept is. To me, it reduces to this: a group of people don't like the idea that something exists, even if they are not forced to participate in it. On that basis, this group feels justified in jailing those who feel and practice otherwise.

I think that a very thin reed on which to hang the loss of liberty. People are bothered by all manner of things. I can list dozens of things liberals find offensive. Years ago, people found interracial marriage offensive. Many people today find Judaism, Islam, and atheism highly offensive. Where does your conception of harm end? When is a group's distaste enough--despite that they are not forced to participate in the distasteful conduct--to justify such a severe sanction? I have a feeling that you will be completely incapable of articulating any line, because your theory of harm--being so divorced from any measurable harm--is so very nebulous. It can, to my mind, justify just about anything. It's just a matter, then, of who controls the legislature or courts.

4. I'm glad you mention majority rule, because that is what I feel the rule, as a general matter, reduces to. Majority rule is great when you are in the majority. You may not always be, and I may not either. My ancestors certainly weren't for much of history (Jews), and suffered sever deprivations owing to perceived but unquantifiable harm. Thus, I prefer laws that, while providing for certain majority rule, nonetheless require the majority to have particularly compelling justification when they wish to deprive liberty. The unquantifiable and ever-changing disgust of a group of people that are not forced to participate in an activity . . . that is not the kind of compelling justification that makes me feel safe.

AO

Posted by: AnonymousOne | Jan 18, 2013 10:12:38 PM

AO --

Just one question for now. You say, "Thus, I prefer laws that, while providing for certain majority rule, nonetheless require the majority to have particularly compelling justification when they wish to deprive liberty."

Who gets to decide whether the majority has a compelling justification?

I ask that as a general question, and would be interested in your answer, should you care to give one.

As applied to this case, however, the courts, interpreting the First Amendment (which, like other parts of the Constitution, is the recognized constraint on majority rule), have held that Isaacs' activities are not protected.

Who would you suggest have the authority to overrule BOTH the courts AND the majority? It seems to me only a dictator could do so, and dictatorship will put you (and the rest of us) in far more danger than obscenity laws. But one way or the other, the country is not about to accept dictatorship, nor should it.

Posted by: Bill Otis | Jan 19, 2013 2:07:03 PM

Bill,

That is an excellent question. I could write a book on it, and I'm sure one (probably more) has been written at some point, but the in necessarily simplistic form my answer wouldbe to include in any polity's constitution a principle requiring that neither thought nor conduct--especially private thought or conduct--could be proscribed absent some non-nebulous or articulable harm. These would not be light constraints on a conception of harm. Thus, this limiting principle would not permit mere distate for or disgust at private conduct to constitute a harm. In this way, majority rule would be limited. Majorities could decide where to lay roads, which wars to wage, and how we are to be taxed. But they could not merely incarcerate people who did things privately that made the majority annoyed or upset. There would be no culture of victimhood in which people could have their fellow man jailed because it upsets them to know that some behavior they find distasteful, yet are not forced to participate in, might exist in the world.

Absent such a limiting constraint on the conception of harm, I have very legitimate fears for liberty. Conceptions of more nebulous forms of harm change every few years and from place to place. I also think, as hinted above, that it fosters an intrusive culture of victimhood. Finally, the sole constraing of majority rule is no constraint when there is no guarantee that the majority is doing the right thing. History has proven that majorities cannot be trusted. It's proven it hundres of time. Neither can minorities. Thus, a limiting principle in a constitutional document.

AO

Posted by: AnonymousOne | Jan 19, 2013 3:06:15 PM

AO --

Thank you for your answer. I must say it's a pleasure talking (as it were) to a thoughtful commenter.

You say, "...my answer would be to include in any polity's constitution a principle requiring that neither thought nor conduct--especially private thought or conduct--could be proscribed absent some non-nebulous or articulable harm."

This gives rise to two more questions, related (not surprisingly) to my earlier one. The first is who would decide that an alleged harm is merely nebulous or unarticulable. One might say, for example, that the women who get excrement all over them in these films, though ostensibly consenting, are really addicts in effect forced to do participate, or poor women desperate for money, or mentally sick women being exploited for profit, and thus that there is harm to them, even though in their vulnerable state they view themselves as consenting.

The second question is whether, even if the "actresses" were consenting in some decently wholesome form, your standard as stated is one that ought to be applied. I believe more people agree with me than with you on this specific point: That the social and moral attitudes that lie behind making, participating in, or watching films of this character are so corrosive to the human spirit that merely to say the films, and the industry for these sorts of films,is disgusting -- and thus nothing more than a matter of taste -- does not capture the harm, though evanescent, that gets done.

Suppose, indeed, that people like that are a majority. Those people do not believe this quite tolerant county is in any realistic danger of becoming Nazi Germany (although, of course, both right and left wing extremists think otherwise). How would you convince us that our confidence in the country's decency and centeredness is ill-founded?

Posted by: Bill Otis | Jan 20, 2013 10:37:36 PM

AO:

Great comment at 3:06:15 PM, 1/19. I truly do not care for the opinions of the majority because they are usually based on sound bites, ignorance and ill-conceived notions. Any meaningful constitution must contain absolute dicta to protect the minority from the majority from human rights violations. Look at all of our current SO laws. Non-punative indeed! How the USSC could say that obvious lie with a straight face is beyond me. Back in 1926, Senator Reed of Missouri rightfully proclaimed that we need less law. Every crank who has a foolish notion (especially prosecutors who know which laws to pass to make winning cases easier) has a sounding board to bastardize "the law" by getting their foolish notions made permanent into law.

"Suppose, indeed, that people like that are a majority. Those people do not believe this quite tolerant county is in any realistic danger of becoming Nazi Germany (although, of course, both right and left wing extremists think otherwise). How would you convince us that our confidence in the country's decency and centeredness is ill-founded?"

Bill, when the punishment and penalty of a crime is worse than the original crime itself based on human nature and lack of any meaningful victim(s) is a good indication of where our country's decency and centeredness are ill-founded.

Bill: I am also sure that the people in Nazi-Germany did not believe that they had become "like Nazi-Germany" until it was too late.

Posted by: albeed | Jan 22, 2013 12:28:25 AM

Test.

Posted by: AnonymousOne | Jan 23, 2013 12:10:50 AM

Bill,

Thank you for your kind words and I, likewise, enjoy the opportunity for a thoughtful discussion. I'll answer this in a few posts, because of a severe character limit.

Who Would Decide? Courts or legislatures, subject to that limiting principle. Legislatures could not merely decree something harmful on collective opinion; there would have to be some empirical evidence. On a statewide or nationwide basis, that seems a good job for the legislature to undertake through careful study and expert testimony. Courts could then decide whether a specific case fit within those parameters. However, on a meta level, courts could review a legislature's decision to ensure it complied with the harm principle (striking down, for instance, such legislation where Congress failed to consider any evidence or where it's consideration was a sham). Obviously, there is then the question of the level of deference, but that may be beyond your present question.

Posted by: AO | Jan 23, 2013 12:16:35 AM

Should My Principle Apply In This Case?

Your argument, at least on my reading, suggests that the harm is nebulous in that it is not immediate (nobody will be measurably hurt this second by such films), but that, cumulatively, exposure to such material might to damage to society. That is possible. However, isn't that the kind of harm that you could put before a court or legislature and demonstrate? That is, doesn't this harm go beyond merely saying "I personally find this distasteful or disgusting." My primary concern was with that specific argument for incarcerating people. My view might countenance proscribing the kind of harm you are now describing, but I'd still want to see evidence. My limiting principle could encompass cumulative harm . Thus, I might agree that on a cumulative basis the heavy presence of violence in video games creates a culture in which violence is deemed acceptable, but, before so agreeing, I'd want to see evidence (studies and the like). But if one could not even muster evidence on this cumulative and attenuated basis, but instead relied on collective feeling, I could not accept that. Collective feeling has proven wrong too many times to be a reliable measure of good policy, especially in the absence of evidence. Majority feeling alone, absent any evidence whatsoever, has been capable of justifying just about anything, however good or odious, at some point and place in history.

Posted by: AO | Jan 23, 2013 12:17:13 AM


"How would you convince us that our confidence in the country's decency and centeredness is ill-founded?"

I would not argue that it is always or nearly always wrong. In general, we have good reason to be confident, and our country is one of the best that a person of any kind could find himself living in. However, I'd argue that, like mere mortals in every country, we do sometimes get things wrong, sometimes spectacularly so (e.g., slavery, racism (which was almost as widespread as religion in many parts of this country), sexism, homophobia, anti-semitism, hatred of the rich). It is that human fallibility that worries me, and the best cure, given the lessons of history and psychology, seems a limiting principle to harm, not merely faith that we won't get something wrong ever again.

Posted by: AO | Jan 23, 2013 12:17:47 AM

Some related points:

1. If we are concerned with "corro[sion] to the human spirit," why would we ever draw a line between images and books? I know the constitution draws that line, but I'm asking as a matter of political philosophy. There is no evidence that corrosion is likelier to result from pictures than from blogs, pamphlets, books, magazines, and rallies. When I think of racism, sexism, anti-semitism, or fascism, these were all doctrines propagated largely by way of speech, not pictures. I think that if the concern is some harder-to-define damage to the spirit of civilized society, we are going to have to quite expansively regulate a whole lot of things. We should be incarcerating everyone that exposes society, by force or voluntarily, to ideas that are corrosive.

2. We should also concern ourselves with what is gained by incarceration. After all, these videos are not thrust down our throats. Presumably, those who find them want to see them. Prohibiting production or even possession of these materials is likely to be of some use only if harm results not from having the desire to see this material, but from actually seeing it. Put differently, if we prohibit homosexual marriage so as to ensure that women have an adequate pool of males from which to choose to product offspring, we would be foolish if homosexual males, when prohibited from marrying other males, nonetheless still refused to mate with women. This is, of course, an empirical question, but since incarceration is so severe a sanction, I'd want to know that it served a purpose by actually preventing corrosion.

Posted by: AO | Jan 23, 2013 12:18:33 AM

3. Once we step into the realm of nebulous harm, we have to be cognizant of inconsistency. You will probably agree that justice should not be arbitrary, and thus that harms should be similarly proscribed. One big danger of nebulous harms justifying proscriptions is that, if the majority gets to decide what is harmful solely by reference to its feelings without needing to offer any evidence of any harm, it is likely to overlook anything harmful in its own conduct. This is not because the majority is evil or poorly-intentioned. It is because the majority is human. Harm is more apparent, as a cognitive matter, in those practices which we are not raised with (That is why liberals raised among communists fail to perceive the dangers in socialism, and also why some conservatives in the 40s found Nazism so repulsive without seeing any problem with the manner in which blacks were treated). Even today, tt would not be difficult to devise a list of things that we regularly do that might be harmful, yet we don't recognize as such. For instance, I could argue that religion is harmful insofar as it fails to teach children to critically analyze, rather than faithfully accept, moral values, as there is little guarantee that the religion of one's parents' choosing will have the right values all of the time. The lack of ability to critically analyze one's own religious beliefs has led to innumerable harms at all points in history (ditto with any other fundamental belief, be it political or economic). I could also argue that having a gun in the home, on a cumulative basis, makes it far more likely that a child will be killed in the home. These are both demonstrable harms taken cumulatively. But we don't proscribe them. Why? One reason is that these are so much a normal part of our society that we don't even recognize the potential for such harm. Another reason is that a majority of us want to be able to do these things. We want to teach our kids our religion, even though we know that only one can be right and thus at least 2.5 billion parents are teaching their kids utter falsehoods. We don't want them to entertain other religions, nor equip them to question the veracity of their own. Similarly, we want to own guns. So we get to do it. But those to whom Isaacs caters, while they want to watch bizarre videos in their own homes, cannot do it. That seems arbitrary.

AO

Posted by: AO | Jan 23, 2013 12:18:58 AM

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