Friday, May 25, 2007

Protecting porn-stars-for-a-day

Garance Franke-Ruta, in a Wall Street Journal op-ed, recently made the intriguing proposal that the age of consent for appearing in pornography be raised from 18 to 21. She is rightfully concerned with the powerr of dirty pictures to "transform the playful exhibitionism of young women into scarlet letters that follow them around for life." She is particularly concerned about the recent "porn-star-for-a-day" phenomenon exemplified by the Girls Gone Wild franchise, and the exploitative behavior of the entrepreneurs behind it.

Franke-Ruta points out that, after all, the drinking age in every state is 21, and a few moments of recorded debauchery are a lot likelier to perniciously follow one around in later years than a few beers. But the practical implications of such a regulation are different. Today, the age of consent for pornograhy follows constitutional law: pornographic images of minors are not protected by the First Amendment, whether obscene or not, whereas images of persons 18 and up are protected so long as they are not obscene. The private possession of even obscene adult porn is protected; the same is not true of pornography featuring minors. Does Franke-Ruta propose to criminalize the creation of erotic films featuring18-20 year-old? Its sale? Possession? Would the effect be retroactive, thus rendering millions of videos and magazines in millions of home illegal overnight? How could the age of consent be raised consistent with the First Amendment?

But setting aside constitutional law, is this a good idea as a matter of policy? I start from the premise that the sex industry is an industry, those working in it are workers (in the case of Girls Gone Wild, independent contractors), and it should be regulated like other industries -- which is not to say there aren't reasons to treat it specially. But the worst actions of pornographers mentioned by Franke-Ruta are violations of existing law, and should be punished accordingly; business regulations, on the other hand, should assume generally law-abiding businesses. Franke-Ruta rightly points out that changes to the process of obtaining written consent are simply not good enough in light of allegations of the use of alcohol and peer pressure to obtain consent. But there are better ways to protect individual participants from coercion than forbidding them to do so (and 21-year-olds may be vulnerable to coercion as well). I would propose that participants be granted a mechanism through which to revoke their consent within a specified, brief period of time and demand the forfeiture or destruction of all copies of the offending images in return for a return of all compensation paid. Obviously this could present some unintended difficulties if applied to professional performers in the traditional adult film industry -- but I suspect it is still a much better, and less paternalistic, solution to the problem of on-the-spot coercion.

Wednesday, May 16, 2007

Gonzales v. Carhart and informed consent

I'm currently revising for publication an article (originally written last fall) on the constitutionality of abortion-specific informed consent laws -- a topic on which precious little clear-cut analysis has appeared in case law or commentary. Naturally, the challenge now is to figure out how Gonzales v. Carhart, and its strange language about informed consent -- strange because of the argument that banning a procedure somehow better informed women's choices.

Jack Balkin has suggested, quite rightly I think, that this language may spur state legislatures to be even bolder in passing requirements that ever-more specific -- and inevitably, more controversial -- statements be given to women seeking abortion about fetal development, supposed risks of abortion, et cetera. Be that as it may, it remains to be seen whether this new wave of requirements -- a wave that was already underway before the Supreme Court decision -- can themelves withstand constitutional scrutiny. Does Gonzales v. Carhart say anything new about the validity of informed consent statutes?

The argument I'm leaning towards, is, No, not really, and for a few reasons.

First, the state interests emphasized in Carhart II are the same ones identified in Planned Parenthood v. Casey: showing "respect for life," and ensuring that women's choices are fully informed, lest they regret them. Moreover, Casey had already established the informed-consent rubric could include not only information pertaining to the patient's health, but also to the fetus. Carhart II simply rephrased these principles, and implicitly accepted along with them that these interests are served only where the information is "truthful and not misleading."

Second, Carthart II did not strike a strong blow for the principle of deference to legislative factfinding. Rather, the Court seems to have bunted on this issue, as once stating that it used a "deferential standard" but that it would not give "uncritical deference" (thus muddling further its already muddled case law on this question). In fact, the Court pointed out that some of Congress's findings were wrong, and rested its conclusion on Congress's prerogative to assess the "balance of risks" in marginal cases, a classic policy judgment. This surprised me quite a bit, as I had guessed the Court would treat the deference issue, emphasized in Kennedy's Stenberg dissent, as decisive.

Now, don't get me wrong: what Kennedy actually does with these seemingly sensible puzzle pieces is incoherent and almost absurd, and promotes a deeply sexist conception of women's need to be protected from themselves in the bargain. And his reliance on an amicus brief touting the discredited "post-abortion syndrome" may be a sign that, under whatever doctrinal cloak, Kennedy may be all too sympathetic to antiabortion factual claims even if they are demonstrably bogus.

But whatever ill Carhart II may auger in other areas, the opinion, taken at its word, does not leave legislatures any freer than they were to force clinics to promulgate medical information that is dubious, outdated, or misleading. To go out on a limb just a bit, if the lower courts do engage in robust factual scrutiny of these requirements, stubborn legislators (or state health departments) could end up playing ping-pong with them, struggling to craft the most inflammatory assertions they can get away with in the face of unfavorable rulings.

Wednesday, May 9, 2007

Quick numbers on relationship recognition and discrimination laws

I promise I'll write some things that don't relate directly to LGBT rights soon; I have some ideas, but this whole finishing law school thing has been a bit of a distraction. For now, some interesting figures in light of recent legislation in Iowa, Washington, Oregon and New Hampshire:

States with full marriage recognition: 1
States with civil union or equivalent recognition: 6 (now incl. NH, OR)
States with modest partnership recognition: 3 + DC (now incl. WA)

States with sexual orientation-inclusive discrimination law: 20 +DC (now incl. IA, CO, OR)
States with gender identity-inclusive discrimination law: 12 +DC (now incl. IA, CO, OR)

For maps of the states, go here and here -- but not that the partnership recognition map designates by the term used rather than the extent of recognition conferred. This is an impotant distinction, since "domestic partnership" in Washington is more modest, whereas "domestic partnership" in California is basically equivalent to "civil union" in VT, CT, NJ & NH.

These numbers are impressive and, at the moment, expanding rapidly -- although we may soon hit the point where expansion slows again as all the states that are ready adopt these laws do so, and efforts in other states fall to gain momentum for the time being. In any event, the number of states in all these categories is now enough that we can start studying their effects across many states and very large populations, rather than relying on evidence from abroad (to which American policymakers, and indeed Americans in general, have always appeared inexplicably indifferent, regardless of the issue). An article from last year in the journal Pediatrics reads like a roadmap for such research, but we don't really seem to have good empirical work yet -- which we need.

Today's theme: trying to have it both ways

As you've probably heard, the House of Representatives just passed a bill expanding the federal hate crimes law. The law both provides for expanded federal assistance to local law enforcement in hate crimes cases, and expands the federal hate crimes statute to include crimes motivated by gender, sexual orientation and disability. The Bush administration opposes the bill, and may even veto it.

As Michael Dorf points out in a thoughtful column today, the White House's objections to this legislation are pretty flimsy. Not only are Commerce Clause and First Amendment objections here seemingly inconsistent with recent Supreme Court jurisprudence, but if valid, they would also apply to the existing federal hate crimes law, which covers crimes motivated by race, national origin, and religion. The White House statement gives nothing but ambiguous hints as to the administration's position on the existing law; it certainly doesn't call for its repeal.

If the White House is serious about these arguments, it should say, "The hate crimes law is a bad law and we should not expand it," even if it isn't willing to expend its now-scarce political capital pushing such a repeal. Moreover, with regard to the First Amendment, the White House should make the case that the protections inserted in the bill in its 2005 iteration to quell the longstanding concerns of the ACLU -- namely, barring the use of a defendant's unrelated speech or associations to establish motivation for a crime -- are not enough.

Like Dorf, I suspect that these objections are just a transparent pretext for homophobia. It's pretty apparent at this point that, for both opponents and supporters, the hate crimes bill doubles as a rehearsal for the recently-reintroduced Employment Non-Discrimination Act. Expanding the hate crimes law, both sides believe, will set a precedent easing the way to expand the Civil Rights Act. And judging from the White House statement on the former, it looks like the White House is cautiously groping for a viable position on the latter.

Our second topic for today is the military's increasing disregard for "Don't Ask, Don't Tell" in light of its increasingly strained human resources, exemplified by the case of a Navy linguist called back to service, even though he had concluded his prior service in the midst of being discharged for being openly gay. They could do this because, technically, his "DADT" discharge never went through, and he left because his time was up; they've apparently just decided to ignore his sexual orientation this time around. When you've squandered mountains of cash on recruiting, training and discharging queer servicemembers with specialized skills like this fellow, "What? Gay? We didn't hear nothin'" starts to sound like wise personnel policy.

Ironically, this particular story hits the news just weeks after the Joint Chiefs Chairman turned heads by declaring he supports DADT because homosexuality is "immoral." (You'll recall that General Pace later "regretted" his remarks, not because he didn't mean them, but because his own "moral views" are beside the point when it comes to military policy.) Fortunately, General Pace now gets to enjoy both the moral superiority of hanging onto DADT and the practical advantage of conveniently ignoring it now and again.

Now, perhaps it's unfair to compare the military's fudging of DADT to the White Houses's dubious arguments on the hate crimes bill. At the end of the day, DADT isn't actually the military's policy -- it's Congress's -- and lots of folks within the military would just as soon see it go, General Pace notwithstanding. Nevertheless, I do see a bit of a parallel here: the White House appears to want to please social conservatives by opposing a pro-gay bill, without displeasing pretty much everyone else by attacking the existing law, even though the two are essentially the same. And some Pentagon leaders want to stick to an anti-gay policy ostensibly based on the erosion of unite cohesion and morale by out troops, but at the same time is at least willing to tolerate the occasional, highly skilled out troop, even though, well, you get the idea.