PUBLIC INFORMATION/FREE PRESS — Nationally the question last week seemed to be which is worse: torturing or releasing records confirming it was done. In San Francisco the question seems to be which is worse: a government subsidy for a torture porn producer, or publicizing the record confirming it was given. But both disclosures' critics abhor the T-word.
As noted on Reason.com, Matt Smith of the SF Weekly recently reported that
California's Employment Training Panel (ETP) was providing state-subsidized training to employees
of Cybernet Entertainment LLC. The subsidy is from the California
Employment Training Panel (ETP), "an agency set up to make state
businesses more competitive with foreign and out-of-state ones by
paying contractors who train in-state workers. Cybernet's business, says Reason, is "high-quality, fetish porn videos."
According to another report, Cybernet insists
are a legal business in the state of California, said Daniel Riedel,
Kink.coms Chief Operating Officer. We follow all of the state of
For three years Kink.com's employees have
benefited from the state-funded training program, which provided money
to allow its employees to take classes at a nearby organization, the
Bay Area Video Coalition (BAVC).
BAVC was giving us training for
post-production skills,said Riedel. He says the program allowed his
employees to learn more about using tools like Final Cut Pro, Adobe
Photoshop — tools of the trade that anyone would use in any production
Riedel says his employees were learning how to edit, shoot video, work with lighting and more. But
after the San Francisco Weekly newspaper made inquiries to the state
panel that oversees the funding, that training came to an abrupt halt.
a letter to BAVC, the employment training panel said it has a
long-standing policy that the adult entertainment industry is the
lowest possible funding priority, and that it was not aware that
Kink.comunder its legal business name Cybernet Entertainmentwas
an adult web business. The state program is funded through California
The funding cutoff led to some interesting disagreement among attorneys as to whether this amounted to censorship forbidden by the First Amendment, Smith learned.
Peter Scheer, executive director of the California First Amendment
Coalition, says the government might be straying into a legal gray
area. "I think a fair reading of Supreme Court decisions in this area
would support the view that government can't deny all funding to
companies while allowing it to others, because the discrimination is
based on the expressive content that the companies produce," he said.
Ashutosh Bhagwat, professor of constitutional law at UC Hastings
College of the Law, was less certain. "The true answer is: The law in
this area is a mess," he said. "The government has some discretion in
choosing what speech it wants to fund, but not always. There's a
potential constitutional issue there."
Calvin Massey, also a Hastings professor of constitutional law, says
that's wrong: Constitutionally speaking, the government may refuse
training for pornographers if it so pleases. "My reaction is that
there's nothing unconstitutional about refusing to provide governmental
subsidies in the pornography industry," he said. "They're still
permitted to engage in that expression. They just don't get a
governmental subsidy. The government is free to make choices about how
it spends its money. Simply because it chooses not to subsidize
expression, or training for expression, doesn't mean [government
officials have] done anything that's not within their rights."
Indeed, in 1998's National Endowment for the Arts v. Finley,
the U.S. Supreme Court ruled that Congress enjoys wide latitude when
setting spending priorities that may affect certain forms of
expression. And in 1990's Rust v. Sullivan, the Supreme Court
ruled that the First Amendment was not violated by a U.S. regulation
that said family planning clinics could receive federal money as long
as they didn't discuss abortion. "The court said, 'The government is
free to subsidize speech it likes, and free to refuse to subsidize
speech with which it disagrees,'" Massey said.
More remarkable was the protest reaction reported by SF Weekly shortly thereafter, and what it was about.
commenters didn't object to any stated opinion in the Matt Smith
opinion column. Rather, a running theme was that this piece of newsand one would have to seriously misunderstand journalism to think
government-sponsored S&M porn isn't capital-N newsshould have
been suppressed to further the cause of free expression.
is a pretty perverse posture for members of a porn industry wont to
hide behind the First Amendment. But I'm told perverse postures are
standard fare at Kink.com's Old Armory headquarters.
enticing still, a commenter masked by the riotous moniker "Free Speech"
announced that torture-porn aficionados and their fellow travelers will
launch an actual pro-government-secrecy protest movement this weekend,
putting up posters, organizing a boycott, and demanding an apology from
SF Weekly for publishing information about the state porn subsidy.