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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


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


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

Posted by: D.A. Ridgely

Of course, we could kill two birds with one stone by insisting that porn shops operate a pharmacy, too, so co-eds from the local colleges can pick up their birth control pills as conveniently as the dirty old men purchase the latest issue of Leather Nuns.

Sounds like a win/win to me!

Posted by: D.A. Ridgely | Apr 14, 2005 6:10:33 PM

Posted by: Don Herzog

Josh Jasper asks,

why support zoning laws that can shut the shop down? They serve no purpose other than to harass someone whose morals you don't approve of.

No, that purpose is not just irrelevant but contemptible. The purpose is they serve is maintaining the character of the neighborhood. We don't let people set up noisy smokestacks downtown, either, and we wouldn't even if rents made it sensible for them to move to the outskirts. And we wouldn't be bent on harassing the factory owners.

Posted by: Don Herzog | Apr 14, 2005 8:12:28 PM

Posted by: D.A. Ridgely

I do agree with Mr. Herzog regarding the permissibility of scorn, derision, etc. as methods of privately influencing private behavior to which one objects. I stop, as I’m sure he would, at behavior threatening persons or property. Also, I think calling such behavior coercive is stretching the concept, but that’s a semantic quibble. It is primarily state coercion and criminal or tortuous interference with others and their property that I consider impermissibly coercive. Beyond that, I follow that ancient legal and social maxim: sticks and stones may break my bones, but words etc., etc.

I disagree with him regarding zoning except when such zoning is the result of unanimous voluntary agreement. If all affected current owners wish to enter into mutually binding restrictive covenants running with the land regarding permissible use, appearance, etc., that’s fine with me. They are collectively risking loss of a future advantage in return for what they believe to be a present gain and any subsequent prospective purchaser can choose to accept those restrictions or buy elsewhere. Same with neighborhood associations, etc. Beyond that, market forces with a bit of help from the Coase Theorem can sort things out.

The organized religion haters among us (I presume you know who you are) will be happy to learn that churches are finding it increasingly difficult to comply with zoning restrictions in residential areas. Again, I have no problem with this in the case of new developments, though I suspect rezoning in some established residential areas may be pretextual in that counties and municipalities have no problem taking land out of the tax base for public facilities but are balking at permitting organized religions to do so. After all, aren’t bike trails more important than synagogues?

I can’t say I’m much of a fan of urban planning or planned developments on any large scale, for that matter; but that’s just an aesthetic judgment. If your tastes run toward homogenized communities, malls, etc., more power to you. There is something far more satisfying to me, however, about the eclectic look of an area where property owners have been permitted over time to pretty much build whatever they pleased, subject only to minimal community health and safety restrictions. (See there? Another minor role for the state!) Still, your mileage may vary, as the kids say.

Posted by: D.A. Ridgely | Apr 14, 2005 10:43:22 PM

Posted by: stick

Count upon attorneys and law students to reduce the problems--and tragedy--of porn to "zoning restrictions." If we just get the right policy and perhaps a "covenant" that local bidness guys can agree on then everything will be hunky dory. I think what Prof. Herzog is objecting to is not the porn at all but the storefront or perhaps the business owner. In other words, if it's Blockbuster or video city with a nice storefront in a mall on the same street, yet the porn takes up 5 aisles of floor space, it's acceptable, even if featuring the same hard core crap that the asian guy is peddling in the liquor store two blocks away.

Posted by: stick | Apr 14, 2005 11:55:57 PM

Posted by: Don Herzog

I'm with Mr. Ridgely in disliking extensive planning, both for the process it represents and the results it produces. Of course "zoning" can be the name of relatively thin rules or maximally demanding ones. This is Don. Color Don "in favor of relatively thin rules, though not apparently nearly as anemic as the rules Mr. Ridgely would favor" with the correct coded crayon.

Mr. Ridgely would have to agree that a general strategy of buying out porn shops could produce strategic behavior: people could threaten to open porn shops, or open them, just to get the cash. Boy would that not be a productive use of resources.

stick: neither an attorney nor law student myself, I repeat the kind of claim I offered to Josh Jasper. Nope, zoning doesn't solve the whole problem of porn. But the siting of particular porn places is a particular kind of problem that zoning, or private displays of derision and concern, can solve.

The Blockbuster point is far more interesting. Municipalities facing the challenge of why they treat some porn shops differently, and accused of caving to corporate pressure or glitzy storefronts, have responded that Blockbuster &c. do not attract petty crime, negotiations with prostitutes, and the like, and do not have clients negotiating for sex, or having sex, in the aisles. It would be neat to have real evidence on whether that kind of contrast is true.

Posted by: Don Herzog | Apr 15, 2005 7:25:17 AM

Posted by: Terrier

"insisting that porn shops operate a pharmacy" <- If we did that, where would the Radical Republic congress weasels pick up their monthly copy of "Gannon's Guide to D.C. Bottoms?"

"minimal community health and safety restrictions." <- isn't that what stick is talking about?

And Don, I suspect that hanging out at Blockbuster would prove to be safer than the local evangelical church (the stories I could tell!)

Posted by: Terrier | Apr 15, 2005 10:12:27 AM

Posted by: Josh Jasper

No, that purpose is not just irrelevant but contemptible. The purpose is they serve is maintaining the character of the neighborhood.

If they've been there for 20 years, I'd say there's no maintainance that would be needed. They're already a part of the landscape. I still think you're just defending the contempible here.

The problem is that the shop has established it's self. At this pont, you're forced to accept it.

What you need is the free market. See, I figure you ought to encourage a feminist wymyn centric porn shop to poen up next door. Something tasteful like Eve's Garden or Toys In Babeland. Subsidize the new store, watch the sleasy store go out of buisness, and you'll have happy college students consuming feminist made porn at a subsidized price until the sleasy store goes under. Then you can adjust the new store's rents to an average level.

A win win situation. No pharmacy needed.

Posted by: Josh Jasper | Apr 15, 2005 11:16:19 AM

Posted by: DJmatheso

"Mr. Ridgely would have to agree that a general strategy of buying out porn shops could produce strategic behavior: people could threaten to open porn shops, or open them, just to get the cash."

Interestingly, common wisdom has it that some of the very first zoning laws were enacted precisely to combat this type of strategic behavior. Of course, back then it was the livery stable, which produced unpleasant externalities clearly detectable by anyone with a nose.

Two things I find interesting libertarian/Coasian approaches to zoning. One, the addiction to the idea that a pre-existing use has a sacred claim (why would it matter that I built my porn shop 20 years ago, instead of having a vacant lot, a 20-year old stack of U.S. savings bonds, blueprints, and a lifelong dream of trafficking in smut?).
Second, if all of those business owners are going to get together and negotiate out a set of restrictive covenants getting rid of porn, an awful lot of other horsetrading will probably take place--"allright, I'll sign your porn covenant if you agree to sign my setback covenant." Aren't the transaction costs--and legal fees--pretty high? And don't we already have state and local governmental institutions dedicated to horse trading? Is it just the word "private contract" that makes the more inefficient solution preferable?

Posted by: DJmatheso | Apr 15, 2005 2:34:48 PM

Posted by: D.A. Ridgely


You quoted Mr. Herzog referring to me, so I'm not sure to whom your comments are addressed.

In any case, I don't understand your first point. Pre-existing uses don't have any sort of per se ‘sacred’ status, but they at least suggest that current claims about their being objectionable or harmful might be exaggerated. Also, there is a simple matter of fairness regarding who got there first. People who have airports built next to their quiet neighborhoods have a legitimate complaint. People who move into houses build after the airport was already there do not. Put otherwise, even the livery stable has to go somewhere.

Of course, the Coase Theorem assumes zero transaction costs and is thus unrealistic except as an analytic tool. But depriving someone of a property right should be difficult. That’s the point. If the current livery stable owner thinks there is more future in a porn shop than feed and tackle, he’s not going to agree to the proposed voluntary agreement. If a mere majority imposes its will to deprive him of that opportunity through state action, that’s just theft posing as the social contract. (C.f., “If the IRS had discovered the quadratic formula.” I have my illusions; Mr. Velleman, et al., have theirs.) In any case, there are methods of reducing those transaction costs if interest is high enough. The merchants can unanimously agree to abide by a majority vote. That’s fine, since no one is being forced to accept the process, in stark contrast to what its fans call democratic majoritarianism.

Posted by: D.A. Ridgely | Apr 15, 2005 2:58:44 PM

Posted by: DJmatheso

I like your point about pre-existing uses demonstrating compatability. Better yet, pre-existing uses can be given priority because those who bought in afterwards accepted the negative externalities of living close to an unwelcome shop. (and therefore presumably paid accordingly). I didn't quite get that from JJ's post, I interpreted (or perhaps misinterpreted) his as an "I got here first" appeal to fairness.

I think we disagree, and will probably continue to do so, on the viability of a "free market" solution. I'm more concerned about the transaction costs and the permanence of contractually based fixes (particularly when you're dealing with a covenant that runs with the land). All kinds of nasty things result that can be tolerated by no one who aspires to economically efficient outcomes (not that I'm one of those).

Really, all a reverence for contractually-based property rights accomplishes is to stick the courts and the much-maligned legal profession with the enforcement burden. Maybe it seems more fair to you, to me it just seems like a tremendously inefficient solution to a problem that's already been mostly solved.

(re: livery stable example, I was trying to lend historical support to the concern about the strategic behavior that the "buy em out" solution might encourage)

Posted by: DJmatheso | Apr 15, 2005 3:26:01 PM

Posted by: D.A. Ridgely

Well, yes, we will probably have to agree to disagree on how inefficient my preferred arrangement would be. I don’t worship efficiency, though. All other factors being equal, more efficient is better than less efficient, but that’s about it. It is a purely contingent fact that slavery isn’t efficient in most economies, but if it were the most efficient social order, I don’t think that would be much of an argument for it.

I understood about the stable. I just lifted the example to make my own point. Presumably towns all once had stables, albeit in the downwind side of the community. Presumably, too, the property values around it were lower because of the negative externalities, as you pointed out. But say practically the whole town decided that it would be even worse to have a porn shop than a stable (which, given the advent of automobiles, didn’t have much of a future, anyway). It would be irrational for the stable owner to vote for such a covenant if he could convert or sell his property to the porn shop. At the very least, the rest of the town should have to compensate him for the lost expectation interest (fair market, too; not condemnation chump-change) if he is going to have that right taken away from him vis a vis that property. That’s all I was saying.

Posted by: D.A. Ridgely | Apr 15, 2005 3:49:08 PM

Posted by: Leon

Actually, Literally Retarded, while the argument that "neighborhoods have a character" is indeed simple, and by some measures 'effective', I only argued that it is not logically justifiable. And, by the way, my condescending tone is modeled directly upon your response to me.

The debate is not about the freedom to choose streetlamps; it's about whether my debauched urban community has the right to ban a Christian bookstore or outreach center from opening on our main street, citing our community's values. If you answered 'yes', then you truly believe in community standards, and I applaud your logical consistency. If not, however, then you are discriminating against material you find offensive, which I believe is antithetical to our country's founding principles - and by some readings, unconstitutional as well.

Posted by: Leon | Apr 15, 2005 4:08:58 PM

Posted by: biscuit

And none of you writing so disinterestedly about zoning laws and freedom of speech are yourselves consumers of porn?

I do have some concerns about aspects of the porn industry. Nevertheless, since no one else on this thread has done so:


Posted by: biscuit | Apr 15, 2005 4:15:10 PM

Posted by: Steve132

Leon - good rejoinder. By the way, I don't believe that anyone has produced a satisfactory answer to your original comment. I consider myself a communitarian, but the argument that "neighborhoods have a character" is, like most anti-pornography arguments, far too broad and sweeping to achieve its ends. It can be used to justify a number of highly unpleasant practices that most of us would (I hope) reject.

At a minimum, a rationale for imposing zoning laws must distinguish between the potential for objective harm to some individual or group and the mere fact that some - even a majority - of the members of a community consider something offensive.

Posted by: Steve132 | Apr 15, 2005 6:06:28 PM

Posted by: Josh Jasper

biscuit, if you've got concerns about the porn industry, take them up with Tom DeLay, he's a major recipient of funds from American lobbyists who make money from porn.

If we craack down on the pornindustry here in the US, it'll just relocate overseas. Unless we turn into China, we're not going to block US citizens from importing it.

Posted by: Josh Jasper | Apr 15, 2005 6:48:27 PM

Posted by: stick

The "local control/neighborhood character" solution is not workable; or rather, that's the big problem with the zoning laws and really suburban economics. Local control in say Santa Monica would seem to entail that local head shops, liquor stores, porn palaces (wymyn-oriented or otherwise), could form covenants to keep out Mormon Book stores or Radio Shacks or Harley dealerships. Covenants and zoning laws would seem to be an easy way to prevent certain businesses from opening. Really Id like to see covenants against McDonalds and Starbucks or Walmarts, and so would many small businessmen ( or they would have until they were put out of business by Walmart).
These issues demonstrate the absurdities of a libertarian-based free-market economy, which tends towards Pottersville. Rich folk get their Pottersville supplies online or have it delivered.....

Posted by: stick | Apr 15, 2005 7:26:04 PM

Posted by: Literally Retarded

Sorry, Leon, I was away the last two days.

Since I approached this thread in response to a "real world" situation, I offered a "real world" response to your post. In the spirit of high-school Lincoln-Douglas debate, I can answer you thusly:

If you live in such a neighborhood, you and your neighbors have the simple and effective ability to prevent that outreach center from opening. I accept your plaudits for my logical consistency.

Now I have a question for you - can you find me such a neighborhood? If not, why discuss it?

Posted by: Literally Retarded | Apr 16, 2005 4:46:48 PM

Posted by: RonZ

I'm curious about the nature of zoning. I live in an economically depressed neighborhood, and the liquor stores and convenience stores in my neighborhood definitely attract a group of folks hanging around out front that I'd rather not have there. To be honest, some of them scare the bejeezus out of me.

Here's my question, though. Would zoning the liquor/convenience stores out of existence help or hinder the neighborhood? And, if I think it would help, does that make such activity justified? Should the gentrifiers (of whom I'm probably one) be allowed to use this tactic to try to force the owners of the building to lease to a less blighted store? I mean, there's no Blockbuster in walking distance of my house. Does that give me a right to shut down the store?

I know that this is extraneous to the original post. But I don't think the issue is extraneous. I don't have a problem with scorn and shame. I am willing to walk past the crowds for my dose of porn if necessary (HONK!). But I think the limits to saying that we can zone out certain stores are stronger than Prof. Herzog seems to suggest. This is especially true as long as what's being sold inside is, well, legal.

When I find myself agreeing with Mr. Ridgely, I always stop to reconsider; I'm willing to believe he's right, but he's such a fine writer that sometimes it takes me a second reading to make sure he's not just swaying me with his style. But in this case, I think he's on to something. Zoning laws strike me as inherently unjustified. They always have. Add to that the fact that enforcement seems to be capricious at best, and I'm right there with you.

On the other hand, private compacts, such as the one he suggests, have some problems. First, and obviously, they can't be based on race or religion. It is OK to say, "I vow that I won't sell to pornographers," but it's not OK to say, "I won't sell to blacks." This is fairly settled law, and while I can believe he thinks it an infringement on property rights, well, I don't. (Forgive me, Mr. Ridgely for assuming a stand you may or may not take; I use you as a stand in for smart libertarians everywhere, but that doesn't mean you think in lockstep with anyone else.)

Moreover, they only work so long as they're voluntary. If I decide to sell to someone who is, in your opinion, not up to snuff, but they are willing to meet my price, has my impact on your life passed into the level of tort? Can I be sued for it? If the problem is based on a contract, who will interpret the contract? How about if I lease to a store that stocks, say, Playboy, but not Penthouse, Hustler or anything most would consider hardcore? Would my signing of the compact effectively allow my neighbors to have veto rights on anything my tenant chooses to sell, including Cosmo?

And who is this sort of compact enforced on? My tenant didn't sign any compact. S/he is trying to engage in a legal business for which s/he has all of the legal licenses. What business is it of mine what she sells? Leases should not be contingent on your liking what I do or who I am. They should be contingent on my being able and willing to meet your payment demands without breaking the law or the lease. (The only reason the last caveat applies is civil asset forfeiture, and don't get me started on how much I hate that concept.)

And then, once I get tired of the compact, I, back in my position as the owner, decide to sell. I sell it to somebody and tell them that I've signed something saying that I won't sell to a porno purveyor. They buy it, and, in fact, don't lease it to a porn store. That doesn't end it, though. They also have the right to sell the property. If they get tired of the effort, they can't even conceivably be banned by a compact they didn't even sign! They have every right to sell to somebody who will run a porn store.

And if I can make them sign to buy the property from me, how is this a free enterprise system after all?

Voluntary agreements are great, but they are not, as far as I can tell, an answer. Or maybe I'm simply misunderstanding. I can believe that. To be honest, I'd not really considered anything that amounts to voluntary zoning before. Anybody care to set me straight?

Posted by: RonZ | Apr 18, 2005 1:23:41 PM

Posted by: D.A. Ridgely


Thanks for the kind words. I suspect, however, there are many English teachers who would tell you that my tendency to write paragraph-long, compound-complex sentences disqualifies me from any style prizes.

I won’t reply about zoning except to say I’m generally but not always against it on grounds that, except in the case of genuinely public property (of which there should be damned little), I oppose the state fiddling with property rights.

Private covenants are a bit different. The general theory is that one can give up or sell off certain rights to property one owns and that the restrictions transfer with title to that property. One can, for example, sell the mineral rights to land. When the land is subsequently sold, the new owner can no more assert mineral rights than he could assert, say, a subdivided parcel sold off to someone else. Same answer with leases; the leasee cannot use the property for purposes for which the leasor could not use it. With one arcane exception (the so-called “bona-fide purchaser for value”), a purchaser cannot buy more property rights than the seller owns. So, yes, these private covenants would be enforceable in court and any property holder who participated in the original covenant or subsequent title holder to that property would have standing to sue to enforce it. (Of course, they could all collectively remove the covenant, too, at some future date.)

The law works in weird ways. You mention correctly that restrictive covenants prohibiting sale of real property to ethnic minorities are illegal. In fact, doing so was perfectly legal, regardless of its morality, until roughly 40 years ago. Civil rights legislation aside, some courts began to refuse to enforce such provisions as a matter of public policy. Any legal right that the state will not enforce is no legal right at all. Whether I believe in principle that private parties should be free to discriminate privately is a complex question, although the general answer is, yes, I do. I also believe under some circumstances there should be some legal limits to private discrimination, but the issue is so complex that it would take a very long time both to articulate my views and then defend against the inevitable attacks of racism, etc., so I’ll let it go at that.

Posted by: D.A. Ridgely | Apr 18, 2005 2:16:13 PM

Posted by: Anthony

Leon - in answer to your question "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?", the practical answer is unequivocally "yes". Suggest to your local city councilman that you are planning to do such a thing, and watch his reaction. Provide enough paperwork to submit a planning application, and see what happens.

Posted by: Anthony | Apr 18, 2005 9:48:53 PM

Posted by: Harald Korneliussen

Haha, interesting that this post should come, as I stated in an earlier post that because I believe in democratic government at all levels, I believe neighbourhoods should be allowed to forbid behaviour that offends them, no matter how weird it may sound to outsiders. (As long as we can show that the desicion accurately reflects the will of the neighbourhood, of course)

But I made a distinction on behaviour. The article says:

"Why, by the way, can we segregate sex-related commercial activities but not poor residential communities?"

Because people generally don't choose to be poor. It's something you are, not something you do. Commercial activities are voluntary, and everyone agrees that they affect the are they are in, whether it's a stong smell of fish and chips or big pictures of naked people in shop windows. That's why we have zoning laws in the first place.

Posted by: Harald Korneliussen | Apr 19, 2005 3:31:34 AM

Posted by: D.A. Ridgely

Children don't choose to be poor. In the United States, at least, it isn't all that clear whether many adults do, in effect, choose to be poor.

Posted by: D.A. Ridgely | Apr 19, 2005 7:53:55 AM

Posted by: arbitrary aardvark

In my town, zoning officials raided and shut down an anarchist book store.
A private sex club was shut down for "fire code violations" where clearly it was selective enforcement.

I have a house on a street that is residential except for the domino's pizza on the corner. It brings litter, speeding drivers, and rats. Dominos exploits and tortures helpless animals.
Would I want the city to have the power to ban domino's? hell no.

I am distressed that a professor, who should understand the concept of academic freedom, is attacking a bookstore.

I haven't been in a place like that since I got dsl. I prefer open source porn.

We haven't been told much about the store - which sector of the market does it cater to?
Our town is big enough that the porn shops tend to be somewhat specialized.
There's the one that mostly sells martial aids to couples, one that sells only gay videos, a couple that are video rental places with good porn sections, an erotic bakery, one that has a video arcade where guys have anonymous sex, another that's your fairly generic porn shop. Traditionally porn shops were often run by the mafia, which tends to explain staying in business without permits, and why I prefer not to have my dollars go there.
These days it's more likely to be your traditional small-business entrepreneur.
That a place is porn shop is, for me, not enough reason to think it should be picketed. There might be good reasons in a specific case - we haven't heard those reasons here.
There is a big difference between picketing designed to express an opinion, and picketing designed to create political pressure to create government action against the target.

Posted by: arbitrary aardvark | Apr 19, 2005 2:15:49 PM

Posted by: D.A. Ridgely

I haven't been in a place like that since I got dsl. I prefer open source porn.

In deference to the animal rights people, we call it free range porn, now.

Posted by: D.A. Ridgely | Apr 19, 2005 2:28:50 PM

Posted by: Harald Korneliussen

Martial aids? What are those, throwing stars? ;-)

Posted by: Harald Korneliussen | May 23, 2005 6:58:52 AM

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