Doing Nothing Is The Better Strategy

Nearly two years ago, I wrote about Ira Isaacs, the guy who makes astonishingly disgusting pornography and who still faces the potential of prosecution for the “crime” of obscenity after having made and distributed literally dozens of copies of such masterworks as Gang Bang Horse “Pony Sex Game” and Hollywood Scat Amateurs No. 7.  (Don’t worry, the link goes to wikipedia and is as safe for work as this post.)  In fact, Isaacs’ trial was declared a mistrial after some unusual behavior by his judge was uncovered, and his motion to dismiss further prosecution under the double jeopardy clause is still pending review by an en banc panel of the Ninth Circuit.

One of the things I tried to express before is that over time, concepts of what is and is not acceptable reading of viewing material are fluid.  Where in the 1950’s, Playboy was considered shocking, it is now so passe that the magazine is having trouble selling itself, losing nearly 10% of its subscribers every year and losing readers overall at more than seven times the rate of the ailing magazine industry.  I hoped that I could make an appeal to decency, in the form of respecting your neighbor’s privacy:

Can we agree that if your neighbor were to buy a copy of Penthouse at the corner liquor store, you would not find that particularly offensive? Seriously, why would you be offended? Why would you consider it any of your business? Why would you even care, other than a level of mild discomfort with the intrusion into your neighbor’s privacy? If Penthouse is a bit too spicy for your tastes, what about Playboy? Or Maxim? Or the Victoria’s Secret catalog? At some point, it’s going to become being something for you to not worry about.

Well, thanks to Marco Randazza, I am reminded that bizarrely, some people seem to care very, very much about what kind of media their neighbors choose to consume in the privacy of their own homes. A church in a town near Syracuse, New York is objecting to a video store opening up next to its church which intends to offer a total of four percent (4%) of its overall catalog in the form of sexually-explicit videos.  The pastor calls this an “immoral situation.”

Now, it is the case that the town has an ordinance that prohibits any business from offering adult films may not be within 1,000 feet of any residential area, school, or church.  Such laws are, absent further information, Constitutional so long as they are based on an attempt to control the “secondary effects” of adult businesses and permit at least some such businesses to exist somewhere within the jurisdiction.  City of Renton v. Playtime Theaters, Inc. (1986) 475 U.S. 41.  So I’m not suggesting that the city is acting contrary to the Constitution to have such a law or that the church is exceeding its rights to insist that the law be enforced.

There’s two ideas I offer for your consideration, however.  First, I’d like to ask, “What’s so special about a church?”  Why are churches singled out for special protection with the adult business zoning law?  It certainly can’t be to protect children from sexual predators — as Randazza points out, a child is at much greater risk of being molested in a church than in a video store.  The idea may be to keep property values high, and churches may be thought to increase property values while adult businesses depress them.  Okay, but whose property values are we protecting here?  The church is the beneficiary of the law.  If it is the case that government may not favor religion over non-religion,  Board of Education of Kiryas Joel Village School District v. Grumet (1994) 512 U.S. 687, then isn’t a law that protects the property values of churches from the depressing effects of otherwise-legal commercial activity a law that favors religion?  Simply put, churches are popular, therefore they get the protection. This, in turn, gives churches an effective veto power over whether such businesses can exist or not, and that comes pretty close to letting churches decide what can and cannot be done by non-parishioners in their community, which we know is a Constitutional violation.  Larkin v. Grendel’s Den (1982) 459 U.S. 116.

There is, I must insist, nothing normatively special about a church as compared to any other sort of non-residential entity — yes, it offers a variety of social services like fellowship, counseling, personal guidance, and child care.  But social clubs, psychologists, and day care facilities all are not protected by this law where churches are.  I suppose if I were a judge, I realize that I’d have to defer to the silly preferences of the majority since the case law seems to allow the majority to implement this silly preference, but if I were king, I’d say that a church gets to be treated the same as any other business.  After reading that, I’m sure that church-loving readers out there will all breathe a sigh of relief that TL is not king and therefore their beloved churches will continue to enjoy preferential treatment before the law. 

The light bulb I want to turn on, though, is that the churches are enjoying preferential treatment before the law.  Even if you are a believer and a church-lover, that ought to give you pause.  Even if you are a believer, that means you likely believe that your own church is the one which offers a true path to salvation, and by extension that other churches offer false paths.  Yet those false churches receive preferential treatment by the government.  I submit that a believer ought not to be pleased with such a result.

Second is the same sentiment I expressed in reference to Isaacs:  “Why do you care so much about your neighbor’s porn-viewing habits?”  They don’t affect you in any way.  No one is going to make you go in to this video store.  If you do go in to this video store, no one is going to make you browse the pornos or rent them or buy them or watch them.  If you want to, that’s your decision and no one else’s.  If your neighbor makes that choice, how does that affect you?  You don’t have to watch the videos with him.  You don’t have to observe what he does while he’s watching them.  He isn’t going to steal from you to support his habit of renting pornos.  Indeed, chances are that your neighbor would prefer to be discreet about what he’s watching and for you to learn what he is watching requires you to engage in an act of investigation that goes beyond reasonable observation what I would consider to be an acceptable boundary into the realm of “snooping,” otherwise known as invading your neighbor’s reasonable expectation of privacy.

Perhaps, then, you want to use the law to eliminate the possibility that you will be tempted to rent such a movie yourself.  That such a thing is an inappropriate use of the law seems obvious to me but maybe it isn’t obvious to anyone else.  I should be free to make a choice different than you.  If you don’t want to rent a porno, no one’s forcing you to.

Moreover, what about like Showgirls, Body Heat, Basic Instinct, American Pie, or any other “R” rated title that has a strongly sexual theme?  The difference between the sexual content of Sexy Secrets Of The Sorority House Part XVII and Wild Things is one of degree, not quality.  The law isn’t really good at drawing such lines because it must do so prospectively and in terms of general application. 

The market, however, is free to make such distinctions on whatever arbitrary, unarticulatable, or even objectively inconsistent terms it wishes.  And by “the market,” of course I mean the collective decisions of individuals.  Very few people object to Wal-Mart selling, or Blockbuster Video renting, “R”-rated movies with sexual themes, but it’s likely that a significantly larger number of people would make such an objectionto pornos.  Some kind of a line is being drawn, to be sure, but that’s the marketplace doing it rather than the law.  I’ve no objection to Wal-Mart electing to sell or not sell certain titles.  I have a real problem, though, when a government starts telling Wal-Mart what it can or cannot sell. 

Which is the real point here — this is the sort of thing that the marketplace can and will sort out.  Fact of the matter is, video stores are based on a business model that is daily becoming more obsolete.  As it becomes easier to purchase movies in digital form directly over the net, either in streaming or in some kind of digital file mode, people are going to need DVDs less and less.  If the church doesn’t like the video store, what it really needs to do is nothing — sadly for them, the entrepreneurs who are starting a video store in 2010 are going to find themselves competing with better, faster, cheaper technology in a very short amount of time and then the issue is going to be what sort of business will replace the video store.