On policy grounds, simply put, implementing any such ban would be incredibly
difficult. The 21-year-old drinking age is, famously, not the most rigorously
enforced law on the books. The fact that establishments wishing to sell beer,
wine, or liquor generally require licenses to do so does, however, provide an
avenue through which enforcement can be conducted. A comparable porn rule would
be even worse. Franke-Ruta, somewhat curiously, actually concedes that her
proposal is impractical, noting that, "a new legal age for participating in the
making of erotic imagery - that is, for participating in pornography - would
most likely operate in the same way [as the drinking age limit], sometimes
honored in the breach more than the observance." Nevertheless, she thinks, "a
21-year-old barrier would save a lot of young women from being manipulated into
an indelible error."
And, indeed, it certainly would prevent - "save" seems like a loaded term -
some young women from doing something they might come to regret later in a
world where, as Franke-Ruta notes, "digital recording technology give[s]
youthful acts a permanent life." On the other hand, criminalizing participation
in such activity would dramatically raise the stakes involved from mild
embarrassment to actual legal penalties.
More distressing in many ways than the practical issues, however, is the
underlying principle. Franke-Ruta wants to prevent 18-, 19-, and 20-year-olds
from agreeing to participate in pornography on the grounds that a woman of that
age is not ready to make a decision "that she will live with . . . for the rest
of her life." But, of course, older teens make decisions they will live with
for the rest of their lives all the time. Many are full-time members of the
work force. Many are serving in Iraq or Afghanistan, undertaking the risk of
sustaining life-altering injury or death. Many are married or have children.
The last point seems particularly relevant. Are we going to favor mandatory
abortions for teen mothers? Or should young women not be permitted to have sex
until they're 21? If so, then we might as well prevent older teens from buying
lottery tickets or getting tattoos (a life-changing decision), either. Maybe
college students shouldn't be trusted to pick their own major either.
The fact of the matter is that older teens are adults and that the essence of
adulthood is being put in a position to make decisions - even bad decisions. To
be in a position where one has to rely on advice from one's friends and family
rather than on coercion to avoid them.
Meanwhile, Franke-Ruta's analysis is curiously class-bound, erecting a
dichotomy between Scorpion Bowl-drinking 19-year-olds and chardonnay-sipping
young professionals. One doubts, however, that drunk Ivy Leaguers are actually
the main source of pornographic talent. Most 18- to 20-year-olds are in the
workforce, and most women making porn are getting paid for their work. One
might hope that in a more just society with broader educational and economic
options fewer people would earn their keep in this way (or, more realistically,
they might get paid more), but at the end of the day making it illegal for
these women to be in porn will reduce, rather than expand, their opportunities.
What's more, it's likely to push many people into underworld activity (or
perhaps simply illegal misrepresentations of their age) and make their work
more dangerous.
Franke-Ruta has pointed to a real problem, but her solution is worse than the
cure and justified by a bad underlying principle. It would make much more
sense, however, to focus more narrowly on the issue of people too drunk to make
smart long-term decisions, rather than on their age. Something as simple as
making the release form process a bit more cumbersome - perhaps requiring that
the would-be pornographer obtain a second release a week after the first one
(when spring break is over and the subject likely to be in a more sober and
reflective mood) - might substantially curb abuses without eliminating
money-making opportunities for people in need or reducing young adults to the
legal status of children.
Matthew Yglesias is an Associate Editor at The Atlantic Monthly.
Clarification: Yglesiasˇ's piece suggests that Franke-Ruta has proposed
"criminalizing participation" in pornography by 18-20 year olds. Franke-Ruta,
writing on May 4 on her blog (in an elaboration on her Wall Street Journal
piece from the same day), wrote that she does not favor criminal penalties for
18-20 year olds who appear in pornography.
