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.