Religious speech gets shorted again

Today, the U.S. Supreme Court denied a petition asking whether a transit authority can reject a Christmas ad for display on its buses just because the ad is religious. This is an easy question, and it’s a shame the Court denied the petition. Justices Gorsuch and Thomas, though, did write a short consolation prize, saying what they would have said if they granted the case: namely, the government can’t discriminate against a religious viewpoint on a topic while allowing other non-religious viewpoints.

The sides of buses are a frequent and heated battleground for free speech. Transit authorities often draw revenue by selling blank space on their buses. In this case, Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, the Catholic Church tried to place a Christmas ad on D.C. buses with the silhouettes of a few shepherds and the phrase “Find the Perfect Gift.” The transit authority rejected the ad.

    The key fact here was that the transit authority allowed other ads about Christmas. All the parties, and the various courts, agreed that Christmas has a “secular” component and a “religious” component. Hence, Wal-Mart and Macy’s and every other retailer could slap their ads on buses across the metropolitan area clamoring about how to celebrate the holiday (by buying their stuff). But a religious advertiser could not express their views on how to celebrate the holiday in that same space, the only difference being the religious nature of the content.

    The Supreme Court has repeatedly stated in other settings that similar restrictions constitute viewpoint discrimination. If the government allows speech on a particular subject matter, it cannot then restrict speech on that topic simply because the viewpoint is religious. That’s true even if the proposed speech drips with religious sentiment–such sentiment deserves equal footing under the First Amendment.

    This isn’t to say that D.C. buses can now be overrun with religious zealotry. D.C. could lawfully limit advertisements to only commercial ads (they don’t). And of course they could always just forego the revenue and say no ads at all. But if the government opens up a space for expression, it must do so even-handedly.

    Seattle’s landlord regs at the Supreme Court

    Landlords in Seattle must rent to the first person to walk in the door, so long as they check out on paper. This “first-in-time” rule has slogged through several years of litigation over whether the rule violates landlords’ constitutional rights (full disclosure–I represent the plaintiffs). That case, called Yim v. City of Seattle, has now crescendoed with a petition to the United States Supreme Court. The Court should seize the chance to decide two pressing questions about the Constitution’s role in protecting property rights: (1) if regulation destroys a fundamental attribute of property ownership–like the right to exclude, or the right to sell–does the regulation result in a taking that requires compensation? and (2) if a regulation is “unduly oppressive” of individual rights, does it violate due process?

    The first-in-time rule is something of a novelty. The rationale behind the rule is to prevent implicit bias; a landlord can’t unconsciously discriminate if she doesn’t have any discretion to decide whom to rent to. Hence, the rule allows landlords to set pre-established criteria, though all criteria must have minimum thresholds (i.e., minimum credit score). The landlord cannot thereafter deviate from that criteria and must simply rent to the first person who qualifies, even if ten or fifteen applicants check all the boxes. After the landlord rents to the first comer, the lucky winner has 48 hours to sit on the offer, after which time the offer moves on to the next person in line.

    The bottom line is that landlords can no longer make common-sense judgment calls about who will live on their property. The practical challenges that result are daunting, for small landlords in particular. A landlord cannot, for instance, deny an applicant because they feel threatened or unsafe when an applicant tours a unit. That’s a big deal for plaintiff Kelly Lyles, a single woman and sexual assault survivor. Or for MariLyn Yim, who owns a triplex and lives in one of the units with her husband and kids. They share a yard and common spaces with their tenants–compatibility and safety are key. And some of the Yims’ units have roommates, where the ability to select people that will get along and feel comfortable with each other is essential. But basic discretion is out the window with first-in-time. If Lois Lane advertises the fortress of solitude for rent and Lex Luthor shows up with his spotless credit score and seven-digit income, she’s out of luck.

    And renting property often involves a give-and-take negotiation that’s no longer possible under the rule. Tom Riddle’s credit score is shabby, but he offers a two-year lease instead of one to make his application more appealing. Not under first-in-time. Pam Isley offers to do landscaping if the landlord drops rent by $50 a month. Nope. Nor can landlords offer leniency by deviating from their criteria because they want to give a second chance to someone down-and-out.

    MariLyn Yim and Kelly Lyles sued on the theory that removing everyday discretion in this manner constitutes an unconstitutional taking and a violation of due process. They won at trial and lost before the Washington Supreme Court. Now, the questions they bring to the Supreme Court’s attention raise some fundamental questions about the Fifth Amendment’s takings clause and the Fourteenth Amendment due process guarantee.

    The plaintiffs argue that a taking occurs when regulation destroys a fundamental attribute of property ownership. They invoke a well-known metaphor in property law: the “bundle of sticks.” Property is not really a single right–it’s a bundle of various rights that a person has with respect to a physical thing, such as the right to exclude others, the right to use the property, to occupy it, to sell it, and so on. Plaintiff’s theory is that each of these “sticks” in the bundle is entitled to independent constitutional protection; when one of those sticks is destroyed by regulation, that constitutes a taking of property as surely as a seizure of land. In this case, plaintiffs argue that denying them the right to decide who will occupy their property destroys their right to sell property to the person of their choosing and their right to exclude people not of their choosing.

    This is an important and uncertain question under the Fifth Amendment. The Supreme Court has held in the past that a taking occurred where various attributes of property ownership were destroyed. For instance, when the United States required a marina to open a private lagoon to the public, the Supreme Court held a taking occurred because the government had destroyed the right to exclude, “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Likewise, the Supreme Court held that a taking occurred when Congress prohibited owners of tribal lands to pass on the property to their heirs, which was a “total abrogation” of a right that “has been part of the Anglo-American legal system since feudal times.”

    The trouble is, though, that some other decisions of the Supreme Court can be read to refute this approach to takings. Hence, the city of Seattle argues that these takings precedents don’t represent the current state of takings law. This question thus presents an important opportunity for the Court to clarify the scope and meaning of the Fifth Amendment.

    The second issue is no less compelling: does the oppressive impact of a law bear on whether it satisfies due process? The federal courts tend to answer yes, while a large number of state courts answer no. The Fourteenth Amendment’s due process clause imposes, at minimum, a floor of rationality–a law must be rationally related to a legitimate government interest. The question raised in the Yim petition asks the Court to address whether an unduly oppressive means (obliterating discretion) of achieving a legitimate government purpose (preventing discrimination) satisfies this threshold of rationality. The Supreme Court has repeatedly held that a law’s oppressive nature bears on whether the law is arbitrary or irrational. That is, a government has no legitimate interest in imposing oppressive laws on its people, and the use of oppression to achieve an otherwise legitimate government interest is arbitrary and irrational, in violation of due process.

    The Washington Supreme Court, however, held that the U.S. Supreme Court had implicitly overruled this “unduly oppressive” analysis. It also overruled a whopping 61 of its own cases recognizing and applying this “unduly oppressive” test–so many that it provided a separate index of cases fed through the shredder. By joining a growing number of states that refuse to recognize that an unduly oppressive law violates the rational basis test required by due process, the Washington Supreme Court has teed up an important issue that warrants the U.S. Supreme Court’s attention.

    These questions will grow in significance as government control of the rental market expands. Since enacting first-in-time, for instance, Seattle has imposed a ban on criminal background checks, a ban on winter evictions, a requirement that landlords rent to a tenant’s choice of roommate, and more. Other cities are enacting similar restrictions on landlord control over their own property. The U.S. Supreme Court should address the pressing constitutional questions that such regulations raise.

    The problem of value in regulatory takings

    Regulatory takings law is a mess. The Fifth Amendment promises: “nor shall private property be taken for public use, without just compensation.” This constitutional mandate encompasses direct acquisition of property, government action that damages or restricts property, and regulation of property that effectively results in a taking. Defining what constitutes a regulatory taking has vexed the courts for decades.

    I believe much of the trouble comes from the Supreme Court’s fixation on loss of value. The primary test for a regulatory taking looks to reasonable investment-backed expectations dashed by the regulation (i.e., I’d amassed resources and did a lot of footwork to build a house, but a new shoreline buffer prohibits construction), the resulting economic loss, and the character of the government action.

    Examining value creates intractable line-drawing problems and fails to establish a predictable rule. How much loss of value is too much? As one might expect, courts come out with wildly different answers, though all of them tend to lean toward not requiring compensation. A Massachusetts court, for example, recently held that a regulation that forbade any development on a parcel of land and resulted in a 91.5% loss of property value was not a taking that requires the government to compensate the property owner.

    Hence, no one going into court with a takings claim really has any way to predict what a court might do, though it’s safe to guess that the result will be bad. Courts are reluctant to draw a line in the sand, so they just hand wins to the government. This is not to say that loss of value is wholly irrelevant, of course, but it’s more relevant to the question of how much compensation is due, not whether a taking has occurred in the first place.

    Takings law doesn’t have to be this way. In fact, nineteenth-century takings law took a totally different approach. Early courts looked to the burden on the property interest, not the loss of economic value. Most fledgling regulatory takings law developed in the state courts, for two reasons: the Fifth Amendment wasn’t applied against the states until the Fourteenth Amendment was ratified in 1868, and the federal government in the nineteenth century wasn’t much in the business of regulating land.

    The early state cases didn’t even consider economic loss in their approach to what constitutes a taking. For instance, in Woodruff v. Neal, an 1859 Connecticut case, a government granted ranchers licenses to graze their cattle on public rights of way that crossed over private land. The private landowners sued for a taking and won because their property rights included rights over the “herbage” that the cows ate. The economic loss had to have been puny, but the court didn’t even bother addressing this, probably because they saw economic loss as pertinent only to the question of compensation due.

    Most of the other regulatory takings cases of that time period involved riparian rights–wharfage rights and so on. So it was with one of the United States Supreme Court’s early forays into regulatory takings–a case where, like the state cases that preceded it, did not even bother to mention loss of value. The case was Yates v. Milwaukee (1870). Yates owned land adjacent to a river and had built a wharf that extended out into the water. The city didn’t like his wharf, so they declared it a nuisance and sought to tear it down. Yates argued this was a regulatory taking, and the Supreme Court agreed. They didn’t bother to mention how much the loss of the wharf would cost Yates. They just held that access to a river was among the rights held by owners of a riverbank. The city had destroyed that right, so a taking occurred and compensation was due.

    Strangely, seven years later, the Supreme Court started to retreat from regulatory takings altogether and didn’t really return to the doctrine until the early twentieth century. Much later, when the Supreme Court thought up its value-based regulatory takings test in a 1978 case called Penn Central v. City of New York, the Court completely ignored Yates and all the many non-value-based takings cases in the state courts of the nineteenth century. In fact, the Court seemed to believe that regulatory takings law was a twentieth-century creation that began with a 1920 case called Pennsylvania Coal Co. v. Mahon. This bizarre blindness to the real history of regulatory takings law has resulted in an incomprehensible labyrinth of takings jurisprudence. The Supreme Court could learn a few lessons from the state courts of two centuries ago.

    Supreme Court hears vital freedom-of-religion case

    Today, the Supreme Court heard  the most important case on the intersection of religion and education to arise in decades–Espinoza v. Montana Department of Revenue. A few years back, Montana had passed its first school-choice program, a tax-credit scheme that allowed a small tax credit for donations to scholarship programs that helped kids afford private school.

    As in any state, many of Montana’s private schools are religious. Right after the state legislature passed the tax-credit statute, the Montana Department of Revenue promulgated a rule that immediately gutted the program by forbidding students attending religious schools from receiving scholarship money.

    The Department based its rule on Montana’s Constitution, which says the legislature can’t “make any direct or indirect appropriation or payment from any public fund or monies . . . for any sectarian purpose or to aid any church, school,” etc. Plenty of states have very similar “no-aid” clauses. Revenue claimed that scholarships for religious students under the tax-credit scheme violated the “no-aid” clause.

    It’s worth taking a moment to consider how bizarre this argument is. These scholarships are funded by private donations–the money never enters a public coffer. Yet Revenue thinks such donations would constitute state aid to religion because the donor gets a tiny tax credit (up to $150) for the donation. Underlying this argument is the strange notion that any money the government declines to collect from you is still the government’s money.  This would mean, for instance, that every charitable donation eligible for a tax deduction would likewise constitute a government appropriation. Revenue’s argument has always looked to me like an extremely weak pretext for blatant discrimination against religious students.

    So Kendra Espinoza and a few other parents with kids at religious schools sued the Department of Revenue, claiming, among other things, that Revenue’s rule violated their free exercise of religion under the First Amendment. Kendra won at trial, and then lost spectacularly at the Montana Supreme Court. In fact, the Montana Supreme Court did something even worse than the Department of Revenue–it invalidated the entire tax-credit program, such that even students at secular private schools could no longer receive scholarship assistance.

    Thankfully, the Supreme Court took up the case, and they heard oral argument today. (My colleagues and I filed an amicus brief with the Court in support of Kendra).

    The oral argument transcript shows a Court divided along the typical ideological lines. The liberal justices seemed preoccupied with standing–whether the petitioners had the right to sue. One justice implied that only taxpayers (who have a financial interest because of the tax credit) and schools (who receive the scholarship money) should have the right to sue. This is a weird take, given that families and students are obviously the intended beneficiaries of the scholarship program.

    A number of the justices discussed a odd quirk about the Montana Supreme Court’s decision. The basic question they raised is this: since the Montana Supreme Court took the scholarship program away from everyone, are petitioners now being treated equally? But the sole reason the Montana Supreme Court struck down the program was to prevent religious students from receiving scholarship. A government action taken for a discriminatory reason is, well, discriminatory. If the legislature had excluded religious students when it enacted the program, the program would still stand. And if the legislature tried to enact the same program, providing equal treatment to religious and secular students alike, the Court would strike it down. That’s discrimination based on religious status–pretty straightforward.

    One justice cited to James Madison’s famous Memorial and Remonstrance Against Religious Assessments, arguing that the founders wouldn’t have wanted public funds flowing to religious schools like this (again no public funds were flowing to Montana religious schools under this program, but why let accuracy get in the way of a good narrative). That’s a terrible misreading of Madison. The Memorial and Remonstrance was an attack on preferential aid to religion, not to a program that provided public benefits to all groups, including religious ones. The difference is vital. Can the government deny churches police protection, fire protection, sewer connections, electrical service, or any other public benefit on the grounds that the government would be providing indirect public funding to religious institutions? Surely not. In fact, that’s exactly what the Supreme Court said in a recent case called Trinity Lutheran, where Missouri denied a church daycare access to a government program that helped renovate playgrounds.

    There is a difference between Trinity Lutheran and this case, arguably, which is that here the money goes more directly to religious indoctrination, not something secular like playground materials. But at bottom, public funding is fungible. Providing police protection and other general public benefits obviously makes it easier for a religious institution to fulfill its religious mission.

    This case should be an easy one. The government offered a benefit to all private schools. To include religious schools doesn’t “establish” religion. It just treats religious groups equally, as the Constitution requires.

    The mythology of Lochner v. New York

    In the highly competitive world of most misunderstood Supreme Court decisions, Lochner v. New York sits high on the list. The reason is simple enough: it has undergone a transcendent ascent to the world of abstraction, where it now embodies the platonic essence of a black-robed cadre of old, straight, white men hankering to smash the plebeian’s face in the dirt.

    Yesterday, the Intelligencer–a publication of New York Magazine–dragged out these old tropes with the galumphing rhetoric typical of someone simply parroting a battered playbook with no real concern for its accuracy. The article is entitled, “Conservatives Want a ‘Republic’ to Protect Privileges.” Its basic premise is to push back against the anti-democratic tendencies of those who oppose direct, untrammeled democracy.

    The article lists several “limitations on democracy to justify and even expand privilege.” The second references the conservative legal movement’s supposed attempt to resurrect the “Lochner era,” in order to protect the wealthy from democratic majorities.

    First, off, it’s wrong to say that the “conservative legal movement” wants to revive Lochner. Both progressive and conservative jurists are generally united in their rejection of Lochner. Robert Bork, a thoroughly majoritarian conservative, railed against the case, as did Justice Antonin ScaliaGranted, this is because the conservative legal movement, sadly, has largely embraced the progressive juridical project of the 30’s, which was devoted to weakening the judiciary in order to shove the New Deal down the nation’s throat.

    Second, Lochner‘s many detractors almost never grapple with the facts of the case. As a result, they frequently misunderstand it. Here’s what actually happened. In the early 1900’s, New York enacted a nitpicky law that saddled bakeries with an avalanche of finite requirements–limits on ceiling heights, limits on the kind of floor, and the demand to whitewash the walls every three months, among other things. But the provision dealt with in Lochner was this: “No employee shall be required or permitted to work in a biscuit, bread or cake bakery or confectionary establishment than 60 hours in one week or more than 10 hours in any one day.”

    A Bavarian immigrant named Joseph Lochner who owned a Utica bakery was criminally indicted for violating this law. Aman Schmitter, another immigrant, lived with his family above the bakery and worked for Joseph. Aman happily worked over sixty hours a week in order to care for his family and increase his skills, and he said so in a sworn affidavit.

    It is undisputed that New York’s law was not about health, safety, or protecting workers, though New York tried to say so at the time. Rather, New York passed the law at the behest of powerful bakeries and baker unions in a patent attempt to crush small, family-owned bakeries that relied upon flexible work schedules. It gets worse–the law intentionally targeted immigrant bakeries in particular, which tended to be of the small variety that leaned on overtime. The state’s legal brief contained a detestable line that progressives today would certainly associate with Trump: “there have come to [New York] great numbers of foreigners with habits which must be changed.” This is the law that progressives who hate Lochner are defending.

    In a 5-4 decision, the Supreme Court thankfully struck down this law that was passed to serve the powerful and crush a weak immigrant population. Put that way, it seems startling that anyone today would wish to stand up for this piece of anti-immigrant, protectionist garbage.

    But then again, Lochner is no longer about Lochner. It’s about rejecting a mythical “Lochner era.” Progressives believe that Lochner represented an entire ecosystem of turn-of-the-century jurisprudence in which corrupt judges were smothering the will of the people wholesale. Turns out that era never existed. Law professor David Bernstein has examined old court records concerning state exercises of their police power during that time period and found that there simply was no lengthy period in which courts were whack-a-moling every piece of social legislation that dared to lift its head.

    To the extent that courts of that era did strike down social legislation under the liberty of contract, they did so not to serve the wealthy, but to protect weak minorities–which is of course why robust judicial review exists in the first place. For instance, the Illinois state supreme court struck down a deeply misogynistic law limiting women’s maximum work hours. The Court used the same liberty-of-contract reasoning as Lochner, arguing that women “are entitled to the same rights under the Constitution to make contracts with reference to their labor as are secured thereby to men.” And in Bailey v. Alabama, the wicked Lochner Court struck down a Jim Crow law that created a presumption of fraud when a worker quit after getting an advance payment. The law was aimed at penalizing black workers–an attempt essentially to revive peonage. Do progressives really want to own up to disagreeing with these “Lochner era” precedents? Somehow I doubt it.

    Lochner did not, as Lochner‘s enemies love to claim, replace the legislature’s judgment with the judgment of the Court. Instead, the Court was willing to look skeptically at the legislature’s motives and demand that the legislature do its work and show that a law burdening a basic right is necessary. The New York law failed that test spectacularly.

    Of course, Lochner‘s legacy does demand that courts counter democratic will when it conflicts with fundamental rights. Alexander Bickel famously called this the counter-majoritarian difficulty, something that has preoccupied the judiciary for a century. If you really care about minorities, though, you might consider Judge Janice Rogers Brown’s insight: “But the better view may be that the Constitution created the countermajoritarian difficulty in order to thwart more potent threats to the Republic: the political temptation to exploit the public appetite for other people’s money–either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.”

    In any case, if progressives continue to take a polly-anna view of unfettered democracy despite the evidence, they should at least bother to get the facts right on Lochner.

     

    Is Free-Riding for Union Negotiations a Myth?

    As the US Supreme Court is considering the case of Janus v. AFSCME on mandatory deductions for the purposes of union negotiations, I think it is time to truly question the argument underlying mandatory deductions: free-riding. Normally, the argument is that union members fight hard to get advantageous conditions. After taking the risks associated with striking and expending resources to this end, non-members could simply get the job and the benefits associated with prior negotiations and not contribute to the “public good” of negotiation. This is an often-used argument.  I come from Quebec in Canada where closed shop unionism (i.e. you are forced to join the union to get the job) still exists and mandatory dues are more stringently enforced than in the United States. There, one of the most repeated defense of the closed shop system and of the mandatory dues is the free-riding argument. As such, the free-riding argument is an often-used communication line.

    That is, in essence, the free-riding argument. While it appears axiomatically true, I do not believe that it is actually a relevant problem. However, before I proceed, let me state that I have a prior in favor of consent and I only sign off on “forcing” people when the case is clear and clean-cut (I am what you could call a radical “contractarian”).

    So, is free-riding a problem? The answer is in the negative (in my opinion) as the free-riding argument entails that unionism provides a public good. One of the main feature of a public good is an inability to exclude non-payers.  Think about the often-used example of lighthouses in public economics: the lighthouse provides a light that everyone can see and yet the owner of the lighthouse would have a very hard time to collect dues (although Ronald Coase in 1974 and Rosolino Candela and myself more recently have emitted doubts about the example).  However, why would a union be unable to exclude? After all, it is very easy to contractually “pre-exclude” non-payers. A non-member could obtain only 50% or 75% or 80% of the benefits negotiated of the union. Only upon joining would he be able to acquire the full benefits of the union.

    As such, “excludability” is feasible. In fact, there are precedents that could serve as a framework for using this exclusion mechanism. Consider the example of “orphan clauses” which were very popular in my neck of the wood in the 1990s and early 2000s. Basically, these clauses “create differences in treatment, based solely on the hiring date, in some of the employment conditions of workers who perform the same tasks“. These existed for police forces, firefighters and other public sector workers.  Now, this was a political tool for placating older union members while controlling public spending. As such, it is not an example of exclusion for negotiation purposes. Nevertheless, such contracts could switch the “date of employment” for the “union status” in determining differences in treatment.

    Another mechanism for exclusion is social ostracism. This may seem callous, but social ostracism is actually well rooted in evolutionary psychology. It also works really well in contexts of continuous dealings (see also this example by Avner Greif which has been the object of debates with Sheilagh Ogilvie and Jessica Goldberg)  Workplace relations between workers are continuous relations and shirkers can be ostracized easily.  The best example is the “water dispenser gossip” where co-workers will spread rumors about other workers and their behavior. All that is needed is an individual marginally inclined towards the union (who could even get special treatment from the union for being the ostracism-producer) who will generate the ostracism. As such, the free-riding argument has a solution in that second channel.

    In fact, ostracism and contractual exclusion can be combined as they are in no way mutually exclusive. These two channels are the reason why I do not adhere to the “free-riding” argument as valid justification of compulsory payment for financing unions.

    Pornography, virtual reality and censorship [I]: presidents and feminism

    Oculus Rift, recently purchased by Facebook and partnered with Samsung, and HTC Vive, manufactured by HTC with Valve technology, have lead the 2010 wave in developing virtual reality headsets. These technologies, innovative by today’s standards but primitive by science fiction’s, mark the beginning of a differently structured society. They also mark a starting point for a new debate about privacy, the social affects of videogames, and especially censorship in media.

    Virtual reality (in its not-too-distant actuality) offers an opportunity to behave outside of social norms in an environment that is phenomenologically the real world. The only comparable experience for humankind thus far is lucid dreaming, for which the rewards are less intense and the journey less traversible than the quick promises of virtual reality machines. One inevitable development for these machines is violent, sexually explicit experiences, available for cheap and accessible 24/7. To see how VR might be received, the closest industries to analyze are the videogame and pornography industries.

    Interestingly, pornography has a very liberal history, in comparison to other “societal ills,” like drugs. Erotica dates back to ancient cultures — notably, the Kama Sutra, hardcore by today’s standards, is still a staple of contemporary sexual experimentation — and today’s perversions were common themes: bestiality, pedophilia, etc., although pornography with an emphasis on violence might be a more modern trend. This isn’t to ignore, however, the roles typically played by women in ancient Western folklore and mythology, which are degrading by today’s feminist standards.

    The case could be made that today’s censorial views on pornography come from a far more malevolent or oppressive stance toward women than two millennia ago. The free expression that pornographic media once enjoyed was severely deflated over the 20th century. Only two years ago, a plethora of activities were banned from pornography in the United Kingdom. Reacting to the legislation, commentators were quick to criticize what was seen as policy that was specifically anti-female pleasure. Female ejaculation, fisting, face-sitting, and many forms of spanking or role-play were among the restrictions. There are puritanical, “moral outrage” elements to the restriction, but many noticed the absurdity of banning face-sitting: said one producer, “Why ban face-sitting? What’s so dangerous about it? … Its power is symbolic: woman on top, unattainable.” (There has been well-intended censorship as well. Los Angeles county passed Measure B in 2012 to require condom use during any pornographic scene with anal or vaginal contact, to combat the spread of venereal disease.)

    Nowadays, there are plenty of porn directors that have learned to focus on both male and female pleasure, and reintroduced artistic merit to their directions. With the equalizing force gaining momentum in porn, it’s curious what the vehement, persistent condemnation springs from, when not focused exclusively on abusive sex scenes. In addition, the negative effects of pornography’s presence in society are still being debated. Just the other day, a study which led to headlines like “Porn doubles the risk of divorce” and “porn signifies a death knell for marriage” was criticized by Reason magazine for failing to address important underlying factors that more plausibly contribute to both pornography consumption and an unhappy marriage leading to divorce. There seems to be an obsession on behalf of the great majority of the public in assigning pornography to some sort of social harm.

    Research on photographic pornography’s effect on society began early and aggressively. The Meese Report (1986), commissioned by Reagan and still frequently cited by anti-pornography advocates, determined pornography to be detrimental to society and family relations, and especially for women and children. Arguments built on similar reports attempt to connect sexually explicit material with rapes and domestic violence, alleging that the desensitization to rough sex carries over from the depictional world into the real one. Henry E. Hudson, the Chairman of the Meese Commission, alleged that pornography “appears to impact adversely on the family concept and its value to society.” The Meese Report, however, has been challenged extensively for bias, and is not taken seriously as a body of research any longer. One criticism by writer Pat Califia, concluding a traditionalist narrative embedded in the research, states that the report “holds out the hope that by using draconian measures against pornography we can turn America into a rerun of Leave It to Beaver.

    The United States’ Commission on Obscenity and Pornography, preceding the Meese Report and commissioned by Lyndon B. Johnson and Nixon, was unable to find evidence of any direct harm caused by pornography. (Although Nixon, despite the evidence under his administration, believed porn corrupted civilization.) It is curious that a new federal study was requested only sixteen years after the first extensive one, but maybe not too unusual given the growth of porn with technology (from adult stores and newsstands to unlimited free online access; the internet just celebrated its quarter-centennial birthday); also not too unusual given the absurd and expensive studies already undertaken by the federal government. It is also worth pointing out that pornography, though often connected to feminism, is a divisive issue within 20th century and contemporary feminism: some thinkers, like Andrea Dworkin, condemned it as intrinsically anti-women; others feminists like Ellen Willis argued for pornography as liberating and its suppression as moral authoritarianism. The debate along lines of sexuality, online or otherwise, culminated in the feminist “sex wars,” with groups like Feminists Against Censorship and Women Against Pornography popping up. Thus, the debate is open across every ideological camp, and support of pornography is neither necessarily liberal nor necessarily feminist.

    [In the next post, I discuss violent pornography’s cross-media transformation into videogames, more sociological research and the general point, and insecurity, of prohibitory measures.]

    Courting Campaign Money

    The Supreme Court has overruled 5 to 4 the previous limit on total campaign contributions in the US. In the McCutcheon v. Federal Election Commission case, The Court eliminated the limits on the total campaign contributions an individual could make to candidates and committees per election. Previously, in the Citizens United case, the Court struck down the limits on campaign funding and electioneering by corporations, labor unions, and nonprofit organizations.

    Critics of these rulings say that they transform our democracy into a plutocracy, the rule by the rich, but the United States has always been a plutocracy, and the voters have used democracy to keep the system plutocratic. Wealthy donors could already finance Super PACs – political action committees. The amount of money spent in US elections had been escalating each election for decades.

    American political culture has had a mixture of two ideals. The first is democracy, the rule by the people as equals rather than by a king or an aristocracy. The second ideal is liberty, especially freedom of speech. When the rich can influence candidates and elections by spending huge amounts of money, the ideal of liberty clashes with the egalitarian ideal of democracy.

    Political speech is the most important of all, and the speech that most needs to be free of restrictions. Just as the government should not limit how many times one may give a speech, or how many editorials one may write on a topic, the government should not limit how much one spends to propagate speech.

    Proposals to have the government finance campaigns also clash with free speech, if private financing is again limited. Governmental funding entrenches the established parties, and it forces the taxpayers to finance political ads which they may well detest.

    Unfortunately, along with democracy and liberty there has been a third political idea in the USA. Economists call it “rent seeking.” In classical political economy, “rent” meant the yield of land. The classical economists knew that landowners receive rent in exchange for nothing, since the title holders did not create the land. They broadened the term to “economic rent,” which means any gains beyond what is needed to put resources to their most productive use.

    Then economists in the branch called “public choice,,” which applies economics to voting and politics, recognized that the subsidies and privileges that special interests receive from government are economic rent, since it is loot taken from the public in exchange for less than nothing. Hence, when special interests seek favors from government, they are rent seekers.

    The modern use of “rent” has become so far removed from its landed origin, and the land factor so much subsumed under capital, that economists no longer appreciate that the biggest rent seekers are the landed interests who obtain the implicit subsidy as the land rent generated by public goods paid for by taxes on labor.

    Because superficial appearances trump the understanding of implicit reality, the reflexive reaction to the corruption of rent seeking is to limit campaign money. That then clashes with free speech. But the reason there is a clash between free speech and democracy is that we have inherited an antiquated 19th-century model of voting that is no longer appropriate to the 21st century world of mass democracy combined with great state power.

    Public-choice economists such as Mancur Olson have recognized that the way to limit the rent seeking disease of democracy is to vote in small groups rather than in large groups. In a large country, the small groups should federate rather than become a large single group.

    The demand for campaign money dissolves when people vote in tiny local districts. The district councils send representatives to a higher-level (or broader-level) council. With such a bottom-up small-group voting system, we would have much fewer political ads in the mass media.

    The mass-democracy model has been grafted world-wide, and it has not brought social peace, as we have witnessed in place such as Egypt and Ukraine. But one day, mass democracy will be regarded as a relic like we today regard the former power of monarchs and aristocrats.

    (Note: this article is also at http://www.progress.org)