Mike: The link on your site today to the Tamba Tribune editorial is fascinating. At the same time, it strikes me that a lot of the non-porn first amendment folks standing up for Max Hardcore have never actually seen a Max Hardcore film.
Instead, they go robotically into this notion that the First Amendment protects all speech (it does and it doesn’t, by the way) and that, hey, if there’s a market for it, let the market decide and if you don’t like it, don’t watch it.
First, there’s a market for just about everything – one of the most watched clips online for awhile was the clip of the beheading of the Wall Street Journal reporter. Not a Hollywood version, the real deal. There’s a market for child pornography, and I’m sure that if you could pay for it online, rather than walk into a video store, there’s a market for snuff films and just about anything else you can think of. Heck, we know there’s a market for bestiality and defecation because a guy is about to go on trial in LA for making those kinds of films. Because someone will pay a buck to watch it doesn’t mean it’s protected speech.
Example: Two kids in Florida just got nailed for filming themselves throwing cups of soda at the folks working in drive-through windows and then posting them on YouTube. Those kids could easily argue that they are auteurs and film-makers; that their artistic vision is to illustrate the absurd lengths some people will go to get attention; and thus, what they did wasn’t assault, it was an artistic statement like any other performance art.
Common sense, and the law, says: What are you crazy? You just assaulted some poor single mom making $8 an hour trying to support her kids. That’s not art, it’s stupidity.
Second, not all speech is protected. Sorry, it just isn’t. All kinds of commercial speech is regulated, which is the reason a vitamin manufacturer can’t claim that Vitamin C will grow hair and cure cancer.
And, to use the classic example, you can’t print that your neighbor is a whore who charges $80 for a blowjob if it ain’t true, and you can’t yell fire in a crowded movie theater. Likewise, you can’t film yourself calling your neighbor a whore and claim its art, and you can’t yell fire in a crowded movie theater, film the mayhem, and claim that you’re just trying to realize your artistic vision.
All of this is a long way of saying: There are lines in the sand, even under the First Amendment. Max crossed a line. Just because some folks are willing to pay to watch him cross it doesn’t make it legal.
My prediction: They’ll take it to the 11th Circuit. Win or lose, someone will appeal it to the Supreme Court.
And, given the economy and prosecutions, I think you’ll see more of the rationalization and commercialization of the porn industry, just like you’re seeing in other industries. Companies like Vivid, Digital Playground and Wicked will get bigger, as will those sites, like Naughty America, that have figured out an online model.
Porn attracts cowboys and outlaws, technology is cheap, and there will always be someone who will try to cross the line to make a quick buck because the cost of entry into the industry isn’t that high for a bottom feeder. But it’s going to get more expensive for those guys and gals to operate.
