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April 14, 2005
picketing the porn shop
Don Herzog: April 14, 2005
A block and a half away from Eastern Michigan University in Ypsilanti, one town over from where I live, you can find The Magazine Rack. Despite the inauspicious name, the place is a porn shop. It's been operating illegally for some twenty years. The owner has no occupancy permit and the area is not zoned for "adult entertainment." (I always want to call it adolescent-male entertainment, but I'll try to spare you my stray snide editorial comments.) He's in violation of fire safety standards, too. The fire marshal confesses that the city sort of fell behind on these things.
The place hit the local news last week when students from Ave Maria College launched a picket. The college, a Catholic school set up by a foundation funded by local boy made good, Tom Monaghan, who climbed from pizza delivery boy to (now former) owner of the Domino's Pizza empire, is just as close to the porn shop as EMU is. Declared one picketing woman, a senior at Ave Maria, "Pornography is the root of a lot of social problems. It's degrading to society. It'd be great if this place would close down, but all we can do is make people think about it."
Meanwhile, a senior from EMU launched a counter-picket of his own, with help from fraternity and sorority members. "Dressed in a stylish black suit," he stood in front of the store with a sign proclaiming, HONK IF YOU LOVE PORN! Ah, democracy. Ah, undergraduates.
Some other commercial firms in town are happy about the protest. The owner of a rental management company commented, "I don't like having a dirty store in my neighborhood. It brings in low-life, nonfunctional people. I would like to see this street do well." And the owner of a Mexican restaurant obligingly showed up with refreshments for the picketers. "I think when young people are concerned about community issues, you have to support them — they're doing something good," she said. "I have nothing against [The Magazine Rack], but no matter how nice it might be, it is not welcoming to the neighborhood. It attracts special characters."
The Supreme Court has upheld zoning designed to exclude such businesses precisely because it lures those low-life, nonfunctional, special characters — more generally, because it lowers property values and attracts petty crime and prostitution, or because a municipality might reasonably think it does. And the Ave Maria picketers are exercising their freedom of speech, not violating the first amendment rights of The Magazine Rack. They can't be violating the shop's first amendment rights, because they're private actors, not the government. The Bill of Rights protects only against state action.
Still, that senior with the counter-picket — no low-life he, in his stylish suit — is worried about the Constitution. "It's an American right to watch and observe what you want to," he
said. "I personally don't look at porn, but I believe in the American
right to watch it." (You knew that personal disclaimer was coming, didn't you? Whoops, sorry, another snide afterthought. Set snide=off.)
Me, I wouldn't even try to outlaw porn. But I'm cheerfully with the Ave Maria protesters. The stuff doesn't belong on a main pedestrian and shopping drag right by two campuses. Right, that means I think there's more here than consumer demand, rent, and the free market, more than the bare fact that The Magazine Rack is a private firm located on private property suggests. There's more to say on behalf of the picketers' concerns than, "if you don't like porn, don't shop there," or "if you don't like seeing the store, don't look at it." Neighborhoods have characters, and those characters are properly matters of public concern. (A sympathetic economist might invoke the flabby category, externalities.) I'd be happy to have the city vigorously enforce the zoning rule and force the business to relocate. I'd be happy, too, if the picketers invested enough time and energy to embarrass some of the customers, depress demand, and drive the shop's profits down to where they'd need to relocate, too. Either public or private action here could be coercive — and could still be legitimate.
But that's just a reminder that the public/private distinction is delightfully messy. Or, better, grammar be damned: the public/private distinction are delightfully messy. There are at least three distinctions traveling under that name:
- state/society;
- what's open to the view or access of strangers/what's hidden or reserved;
- where you're obliged to pay attention to others' interests/where you may suit yourself.
A common political mistake is to assume these three distinctions map onto each other, but they crosscut or are wholly independent. Another common mistake, more politically lethal, is to map the public/private distinction onto the coercive/voluntary distinction.
So here's another of your friendly neighborhood nerdy professor's homework assignments. Sort out what's public, what's private, in my tale of the picketed porn shop, and then sort out how power fits in. Hint: it's tricky. Got it? Good. Don't lose it.
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» Zoning and public morals from Liberum Arbitrium
Over at Left2Right, Don Herzog reports from Ypsilanti. Apparently, there has been a porn shop in the middle of a "decent" neighborhood close to EMU for 20 years or so, and now some people from Ave Maria are picketing the shop and want to get rid of i... [Read More]
Tracked on Apr 14, 2005 4:50:31 PM
Comments
Posted by: D.A. Ridgely
Well, it’s hard to argue that there is not a state/society version of the public/private distinction operating when the NIMBY bluenose’s recourse is to zoning laws to prohibit otherwise legal behavior. I assume for the sake of argument that Ypsilanti already has general zoning laws restricting adult entertainment; Mr. Herzog stated only that the site is not zoned for such activity and the linked story is vague.
Why, by the way, can we segregate sex-related commercial activities but not poor residential communities? Arguably, poverty attracts “low-life, nonfunctional, special characters” at least as much as sex shops, and yet many liberal zoning boards insist on a percentage of “affordable” housing in neighborhoods poor people otherwise couldn’t manage.
I’ll make the predictable libertarian pitch here. Zoning and eminent domain condemnation (which would have been a far more interesting and timely topic) boil down to the political majority refusing to pay the fair market price of restricting someone else’s rights to property use. If the upstanding merchants on Cross Street think their neighbor of some 20 years is hurting their business, they should try to buy him out. I wonder, however, how many of those merchants arrived after The Magazine Rack was there. So, too, with eminent domain, especially when the state then turns around and gives or sells the condemned land to a private enterprise. (See there? I’m not always on the side of big business!) BTW, I’d probably be willing to have disputes over fair market price resolved by binding arbitration in legitimate condemnation cases.
Having wandered the Red Light district in Amsterdam (where window shopping takes on a whole new meaning), I can’t say I have much sympathy for those who claim emotional or aesthetic distress at such businesses being in plain sight, either. Live and let live. (“What’s that, little Johnny? Oh, those are prostitutes, dear. They’re like professional athletes -- they ruin their bodies for money.”)
There are all sorts of public/private distinctions that have nothing to do with the state -- would that there were more! As far as I know, picking one’s nose in public is not per se illegal anywhere in the U.S., and yet we manage to walk the city streets reasonably confident that we will not encounter legions of nose-pickers offending our sensibilities. Drunks and junkies lying in the gutters? A good object lesson for the kiddies not to abuse drugs and alcohol.
My question to liberals in general (though not, of course, to Mr. Herzog in particular) is why it seems, at least from the non-leftist’s point of view, that the left’s default solution to most of these problems of social friction is state intervention? Whatever happened to good, old-fashioned scorn, derision and avoidance?
Posted by: D.A. Ridgely | Apr 14, 2005 9:21:57 AM
Posted by: Literally Retarded
I don't think this is tricky at all. We humans organize ourselves by family first, then by neighborhood (town, church, etc.) then state, then nation.
What is permitted and not permitted at the family level depends on the fiats of the adult(s), who 99% of the time know better. In the neighborhood, other adults have to be respected and accomodated, but there are limits to behavior. Town ordinances exist because towns are open structures. They are the equivalent of "When you are in my house, buster, that kind of behavior is not acceptable." State and national restrictions and protections flow outward, so to speak, from there.
What would be interesting to me, in Prof. Herzog's story, is replacing "porn shop" with "abortion clinic" or "gun shop," leaving all other aspects of the story intact. What would the professors reaction be, and what would the reaction of the townspeople be?
Posted by: Literally Retarded | Apr 14, 2005 10:49:08 AM
Posted by: john t
Don H mentions that the porn shop is in violation of safety standards,has no occupancy permit,and has been operating illegaly for a mere 20 yrs. Yes,as the overworked fire marshall puts it,the city has fallen behind. The city fathers need to be reminded of both the necessities and efficienies of government. That aside,picketing is a public display of another time honored practice,the boycott. Private action based on individual decisions without running to the pols and asking them to be your own special referee. In this case,considering the condition of the store,it would be fair to ask the harried,underpaid,exhausted,but dedicated,public servants,why they have been sitting on their asses for 20 years. I don't know if I would but it's their picketing and it's a fair question. As to zoning in general it is defensible if at times less than perfect. I would think that a community or city has the right to structure,plan,or design both it's appearance and utility under a broad understanding of and by it's inhabitants. With or without zoning boards but always with some kind of muncipal supervision it's been going on for a few thousand years. But as I say it is imperfect.
Posted by: john t | Apr 14, 2005 11:26:41 AM
Posted by: Tom Perkins
"Whatever happened to good, old-fashioned scorn, derision and avoidance?"
D.A. Ridgely, those are the result of value judgements, made in fulfillment of traditional values--those values are not leftist values, therefore they are to be rendered superfluous or even criminal, crushed by state action. I'm sorry, I believe it was a rhetorical question, and someone else would have said much the same thing at some point, but thought, what the heck.
Yours, TDP, ml, msl, & pfpp
Posted by: Tom Perkins | Apr 14, 2005 11:30:05 AM
Posted by: Leon
Don,
I don't see how the rationale of "neighborhoods have a character" is defensible. Does this mean that if I attempt to open, say, a job training facility for ex-felons, or a rehab, in some prosperous community, they can veto it on grounds that it "attracts undesirables", and zone me out of existance?
If the answer to the above question is no, then your argument must rest heavily upon the sheer malignance of the porn itself, rather than the undesirable characters it attracts. And here, I would strongly take issue with your position. Pornography stores simply distribute a type of books and videos to an adult public (that consumes them voraciously); that you may find this type of book offensive is no reason to create an underclass of businesses that can be forced off the main drag into a back alley.
So long as the storefront advertising is not assaulting passersby, and that the store is not allowing minors access, the only argument against the store must be in the nature of pornography as a corrosive force - a position I'd be happy to dispute, at least by comparison to other toxics (alcohol, inhumanly violent movies, cult-scams like Scientology) who's distributors aren't made into second class merchants.
Posted by: Leon | Apr 14, 2005 12:31:39 PM
Posted by: Bret
I think that possibly in the not too distant future, zoning ordinances may prohibit the operation of secular universities in certain areas. After all, they are at least as offensive to many in the growing religious majority as mere porn shops, perhaps more so, since they are perceived to take an active role in undermining the morality of the populace. Also, secular universities certainly attract "special characters".
Are you going to post the answer key for the "friendly neighborhood nerdy professor's homework assignment"? When? I've written down my answers but am too embarrassed (I'd rather be caught looking at porn) to post 'em. My homework was never publicly posted when I was in school, I don't see why it should be now. Not fair.
Posted by: Bret | Apr 14, 2005 12:48:28 PM
Posted by: stick
I think there are sound, secular reasons to ban porn. It's not simply a matter that it's out of the way of the public--the porn industry harms and exploits people, both the consumers and the workers (porno actresses). And it leads to giant profits for the pimp-producers--Flynts and Hefners, etc. It's not healthy. Huslter "Boutiques" should not be permitted on Main Street, even if blatant sex acts are not on site. There is evidence showing the pathopsychology of the porn addict, thus encouraging porn is on the same level (wors in fact ) as encouraging the use of hard drugs. Similarly one could argue there are sound reasons to ban professional sports and pop entertainment.
Posted by: stick | Apr 14, 2005 1:06:19 PM
Posted by: Literally Retarded
Actually, Leon, the argument that "neighborhoods have a character" is both simple and effective. From the placement of roads, the size of residential lots, to the design of streetlights, neighborhoods (in the form of some municipality or other) have been claiming and enforcing that right for a long time. Not to mention that whole Hustler-Magazine-Community-Standards-Supreme-Court thing.
Posted by: Literally Retarded | Apr 14, 2005 1:19:31 PM
Posted by: Tad Brennan
Mr. Ridgely--
"Whatever happened to good, old-fashioned scorn, derision and avoidance?"
I thought that scorn and derision, expressed by private parties through picketing, was exactly what DH was advocating? I.e., he came out in solidarity with the Ave Maria crowd who were exactly employing scorn and derision against the business's owners and patrons.
DH also termed their tactics "coercive" (I *think* he implicitly applied that label to their actions), and you might not. I certainly think there are differences between coercion-by-public-scorning and coercion-by-violence-monopolizing-state. I'd like to hear more about why he counts this as coercion, and whether labeling it that way lends analytical clarity or obscures things.
But what really has me puzzled is why you went all the way to Amsterdam just to shop for windows--surely there are Home Depots around the D.C. area?
Posted by: Tad Brennan | Apr 14, 2005 1:43:01 PM
Posted by: D.A. Ridgely
Mr. Brennan:
I, of course, have no objection at all to either the protesters or the counter-protester. Well, except perhaps to note that they would better use their time doing other things. (Studying?)
You might just as readily ask me why I went all the way to Amsterdam to frequent their, um, 'coffee shops' when there's a Starbucks on just about every corner around here.
Posted by: D.A. Ridgely | Apr 14, 2005 2:01:00 PM
Posted by: D.A. Ridgely
And speaking of protest, American style... here's a bit of finger licking fun.
Posted by: D.A. Ridgely | Apr 14, 2005 2:10:03 PM
Posted by: Jussi
Interesting post. I am generally sceptical of zoning regulations, particularly, if it is used to create "adult entertainment getthos" to keep other neighborhoods "clean." I agree with D.A. that neighborhood preference can be regulated by supply and demand, avoidance and so forth.
BTW, it would be interesting to see how many residents of the "clean" neighborhood--and I am not looking exclusively at he EMU *students*--will have to drive to the more dangerous, dirty quarters to get their fix of porn if the Magazine Rack is banned.
Posted by: Jussi | Apr 14, 2005 2:37:53 PM
Posted by: john t
Jussi re 2:37 post, maybe they're the counter protesters.
Posted by: john t | Apr 14, 2005 2:47:44 PM
Posted by: Peter Wizenberg
Since statists have no compunction in prohibiting or regulating "captialist acts between consenting adults", why would they stop at porn?
Posted by: Peter Wizenberg | Apr 14, 2005 2:49:17 PM
Posted by: stick
"Since statists have no compunction in prohibiting or regulating "captialist acts between consenting adults", why would they stop at porn?"
Who makes porn? Po' girls. Uneducated girls. They are washed up at about 30, if not younger, and then usually off to vegas to work as escorts, and then may move into the trailers in the deserts of Nevada, to be used by truckers or bikers, or gangstas and wiseguys from LA on fight night. Or in the streets. And money you pay for the rag mostly goes to the pimp-producer --not to the gals. SO porn is making more Larry Flynts. Ever seen his skyscraper in LA on Wilshire? If you think that is all well and good, then do nothing, and let the zoning be open to the Phuck Boutiques. Plato himself would have prohibited porn and most forms of pop entertainment, wouldn't he have? The hordes cannot be entrusted to the "freedoms" that so many libertarian academics hold to be innately good.
Posted by: stick | Apr 14, 2005 3:09:17 PM
Posted by: Peter Wizenberg
Stick: You of course, then, have absolutely no problem with gay male porn.
Posted by: Peter Wizenberg | Apr 14, 2005 3:39:22 PM
Posted by: stick
Is that what you are into? NO, it should be banned as well. Though I don't like to agree with conservative catholics or muslims, porn is exploitative. Its one of the swampflowers of finance capitalism.
Posted by: stick | Apr 14, 2005 3:47:05 PM
Posted by: Peter Wizenberg
Hey, at least my posting name isn't "stick"! LOL!
Posted by: Peter Wizenberg | Apr 14, 2005 3:57:38 PM
Posted by: Josh Jasper
Me, I wouldn't even try to outlaw porn. But I'm cheerfully with the Ave Maria protesters. The stuff doesn't belong on a main pedestrian and shopping drag right by two campuses.
You're right. It belongs on our computer networks, where anyone can download it regardless of age. Not in a store where the owner can responsibly limit the age of purchase to 18 and over.
If you don't like porn, and want to do something about it picketing a local porn shop is about as useful as picketing the local paper goods shop as a means to combat rainforest deforestation.
Mr. Herzog is barking up the wrong tree, as are his protesters. sure they have a right to protest. Everyone has the right to protest. But they're about as useful as an ice cube in a forrest fire when it comes to actually doing something about porn.
I can, with a few clicks of my mouse, violate several international laws against child pornography. The internet makes that easy. I can download hardcore S&M. I can download bestiality. I can download simulated rape.
I can easily buy things that that small smut shack could never ever sell. In bulk. Or I can get them free of charge if I'm clever about it.
The good professor, on the other hand, has no idea where I live, and isn't likely to know where the suppliers of the majority of the hardcore nastiness on the net reside. He can't protest against them. Now is he protesting against the politicians who're raking in millions in donations from large cable networks that make millions transmitting porn.
Here's a link to a PDF of who's who in the Washington Porn Lobby Cash Grant Program. It might take a while to read, but most of the big feeders from the porn/politics link have an (R) next to their name, and regularly rail against pornography, mostly small business porn places, like our good professor's porn shop.
so, engage in that all essential right to protest, but do so knowing that the real problem isn't what you're addressing at all.
Posted by: Josh Jasper | Apr 14, 2005 4:01:34 PM
Posted by: stick
The hypocrisy of a De Lay is as nauseating as the Flynts, Hefners, and the peep show hoteliers. The biblethumpers, having realized that the money came from the corp.s that market the porn, ought to return the cash. There are good arguments that PACs themselves should be forbidden. But that's veerign to close to rationalism--the anathema of American politics.
Posted by: stick | Apr 14, 2005 4:27:20 PM
Posted by: Terrier
I am sympathetic to both viewpoints. I would like to shut this place down and wave the sign that makes the horns honk. Certainly both sides have a right to have their say. I don't understand how this falls in neatly with brain-dead left versus right analysis. I would suspect that the good Catholic girls are loyal Radical Republic voters and the kid in the black suit may hang on the words of a Marxist professor every day. In my life experience it was always rightwing preachers denouncing the Satanic porn and urging zoning as a first step. A step that has resulted in the common site in my area of driving 'in the country' and being confonted by signs hawking triple-X videos. I suspect Mr. Ridgely believes he lives in a neighborhood so exclusive that Larry Flynt could never afford to purchase the lot next door and if you are not hardworking enough to say the same then it is a moral failing on your part to want to protect your children. On the other hand, stick seems to want to lead a posse of townspeople with pitchforks and burning torches to eradicate every possible scar in his vicinity. I am just thankful that these issues are under local control and yet still have the framework of law to protect the interests of all parties. Is there no 'country' near Ypsilanti?
Posted by: Terrier | Apr 14, 2005 5:05:32 PM
Posted by: Don Herzog
Josh Jasper is absolutely right that relocating a particular porn shop has nothing whatever to do with the ready availability of all kinds of genuinely hideous materials to anyone and everyone with internet access. But that's just to say that zoning policy could never masquerade as a general policy for regulating porn. Sure.
Tad rightly points out that Mr. Ridgely can't conceivably be disagreeing with me in this post when he applauds good, old-fashioned scorn, derision and avoidance. And he says he'd like to hear more about coercion. Well, as he knows perfectly well, there's tons and tons to say. I'd dip my toe into those waters by saying just this: your action isn't voluntary if you had no reasonable alternatives. A straightforward way to be deprived of reasonable alternatives is to have the state threaten you with punishment if you do something. But private actors can do that, too. "Your money or your life" is canonically coercive. Picket lines can work the same way: "you can walk through this line, if you want to incur our jeers and sneers and incur the public shaming" can sensibly qualify as coercion in this view.
Posted by: Don Herzog | Apr 14, 2005 5:16:45 PM
Posted by: stick
Really Good Professor Herzog's analysis is far too "a posteriori." The question might be whether the zoning should have allowed porn shoppes in the first place. I suspect the protesters would say no, it should not have. The Ave Maria students should have the right to protest, but I don't think they have the right to block the doorway or even harass patrons of the shoppe: I mean they might say to the professor as he leaves with his fresh load of manga, you sinner! or yr headed to the fiery furnace! But they are not justified in doing anything threatening.
The problem is that the popular vote will not stop porn ; like beer and guns and pop muzak, the masses love porn, as shown by their buying habits. So preventing it has to be based on other grounds--which would need to be psychological and perhaps economic rather than theological.
Posted by: stick | Apr 14, 2005 5:43:23 PM
Posted by: stick
Ok, rereading it I note that Prof Herzog, while claiming he would not support outlawing porn, does claim to support the protesters and thinks that the city should enforce the zoning restrictions. WHile Prof. Herzog's insights and rhetorical flourishes do surpass my own, I think that is NIMBYism. IT should be legal but not saleable? Or should the smut be available only in rich neighborhoods, in upscale video stores or liquor stores with expensive wines, instead of the 'hood. (IN cali most of the video stores have great big porn sections--should protesters stop that? ) It seems inconsistent to support the protesters and the zoning, but not to argue that porn should be curtailed if not outlawed.
Posted by: stick | Apr 14, 2005 6:00:05 PM
Posted by: Josh Jasper
Wow1 I'm right? Hey. I totaly win at this intenet blog game :-)
So, if I'm right, why support zoning laws that can shut the shop down? They serve no purpose other than to harras someone who's morals you don't approve of. I'm failing to uderstand your motivations here.
Posted by: Josh Jasper | Apr 14, 2005 6:02:35 PM