Elizabeth Nolan Brown on the War on Sex Workers
2019-03-05 · Guest: Elizabeth Nolan Brown (Associate Editor at Reason Magazine) · 52:06
Government War on Sex Workers and Trafficking
Bob Zadek interviews Reason editor Elizabeth Nolan Brown about the government’s “War on Sex Workers.” They discuss the legal conflation of consensual sex work with human trafficking, the history of federal overreach through the Mann Act, and how shutting down online platforms like Backpage has made sex workers less safe by removing their ability to screen clients.
Topics: Sex Trafficking, Sex Work, Mann Act, Federal Overreach, Section 230, Backpage, Civil Liberties, Feminism, Rights not Rescue
Speakers: Bob Zadek — Host Elizabeth Nolan Brown — Associate Editor at Reason Magazine
Introduction and Reason Weekend [00:00]
Bob Zadek: Welcome to The Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. We are today and always the show of ideas, never, ever the show of attitude. Thank you so much for listening on this breaking first show broadcast remotely. I am pleased to say I am broadcasting from the Biltmore Hotel in Phoenix, Arizona, where I’ve just attended a wonderful four-day conference, Reason Weekend. It’s an annual conference sponsored by the Reason Foundation, the publishers of Reason magazine.
So, rather than miss a show, I couldn’t pass up the opportunity to spend Sunday morning with you from the Reason Weekend. And I’m delighted to welcome to our show this morning, on our first remote show, one of the leading speakers from Reason magazine and the Reason Weekend, Elizabeth Nolan Brown. Liz is an associate editor at Reason magazine. She writes regularly on the intersections of sex, speech, tech, crime, politics, panic, and civil liberties. Oh my god, what in Western civilization have I left out from that list? Liz is the co-founder of the libertarian feminist group, Feminists for Liberty. She’s won multiple awards for her writing on the US government’s war on sex—and we know how afraid we are of “war on” anything. War on drugs, war on poverty… any “war on” a concept is doomed to have the usual results of war, which is wounded lives, wounded bodies, and a society far worse off than if there was never such a war. That is true on this morning’s topic: the war on sex.
Liz has written in The New York Times, Los Angeles Times, Daily Beast, BuzzFeed, Playboy, Fox News, and Politico. I guess we’ve included every publication in America other than perhaps Boy’s Life and Scholastic American. Liz has been a guest on the Laura Ingraham show, Fox News at Night, NPR’s 1A, BBC Business Matters, and Monday Live with Dr. Drew. And this morning, we will add to that list The Bob Zadek Show. Liz, thanks so much for joining us this beautiful Sunday morning in Phoenix.
Elizabeth Nolan Brown: Thanks so much for having me on.
Defining Sex Trafficking v. Sex Work [02:56]
Bob Zadek: Now Liz, this morning we’re going to talk about a “war on.” And of course, we are having a war on yet another concept, which is sex in the broadest sense. Why anybody would want to declare war on sex is beyond me, but so be it. The government declares war on all kinds of strange concepts. But not “war on sex” per se—after all, we do need, even the most conservative of us acknowledge we need procreation, lest we not survive another generation. So this is not necessarily a war on sex, but more specifically a war on sex trafficking.
Now, sex trafficking is a strange concept. Sex trafficking conflates two very different topics into one, and it does so for political and law enforcement convenience. Sex trafficking, in my mind, is something like the concept of illegal immigration. Everybody is opposed to illegal immigration. But when you drill down beyond the headline and ask somebody how they feel about illegal immigration, they say they’re opposed to it, and I will then ask them, “Hold it a second. Are you opposed to the illegal part or the immigrant part?” And once you separate the illegal from the immigration, it’s an entirely different conversation. It is also true with sex trafficking. How do you feel about sex? Well, kind of nice. How do you feel about trafficking? I hate it. So law enforcement and the legislature have kind of invented a concept in order to justify, to get political cover for the regulation or the control or the use of police power to interfere with an otherwise lawful activity, i.e., sex.
So Liz, tell us about the concept of sex trafficking. It’s to my mind kind of new. The concept didn’t exist very much a short time ago. What do we—when we are talking about, because we’ll be spending an hour talking about it—when we are talking about sex trafficking as you use that concept in your writing and in your media appearances, what is sex trafficking and what about it caught your attention?
Elizabeth Nolan Brown: So yeah, it’s—like you said—it’s a very muddy concept. Because when people think “sex trafficking” or “human trafficking,” they think that there has been someone abducted, they think maybe they have to be moved from place to place. Actually, none of that is required for the law. So even when we’re actually talking about the real crime of sex trafficking, it’s a lot different than what people think. Under federal law—and it’s actually been a federal law since the year 2000—they say that any prostitution or commercial sex, paid sex, that involves force or fraud or coercion is illegal. And then any prostitution or sex that involves paid sex that involves minors is illegal also. So people under 18. And there doesn’t have to be any force or fraud or coercion, just any juvenile getting paid for sex counts as sex trafficking.
Obviously, these things are very bad. You know, I’m not saying that these are not bad. These are bad things. But under the guise of a war on sex trafficking, under the pretenses of a war on sex trafficking, what you almost exclusively see is actually the government going after sex work, which is the thing that—you know—sex workers, the people who are adults who are consenting to do this. So you see them going after sex workers under this pretense, and also just sort of going after everyone’s civil liberties. I mean, I write all the time about just sneaky sort of power grabs that are made at the federal and state levels based on this, “Well, we need this power so we can stop sex trafficking,” but they never demonstrate actually how it’s going to help, and it just usually sort of gives more power to various authorities.
The History of Federal Sex Policing [06:53]
Bob Zadek: Now, what’s—you mentioned it’s been a federal law since 2000, early in the 21st century. And I perked up when you said that, because “federal law”… Now, my regular listeners will know and will always pass the test when I challenge them and I say, when the Founders wrote our Constitution in Philadelphia during the hot summer and hot early fall of 1787, there were originally three federal crimes. There was not really going to be any concept of federal criminal law, and you couldn’t have one because there were no cops. Back in the good old days, there was no federal police force, and there never was intended to be one because the police power—and police power means more than simply policing, it means all matters relating to the health and safety and well-being of citizens—was left to the states intentionally. So there was no federal police force because there was nothing for them to do. There were three federal crimes. They were, of course, treason, counterfeiting, and piracy. We always live in fear of piracy, and so the Constitution criminalizes piracy. Well, you don’t need much of a police force to enforce counterfeiting, piracy, and treason, so therefore no federal police force.
That concept made sense to the Founders; it makes sense today. Today, we have about 5,500 specific federal crimes, and maybe 20,000 more if you include regulatory violations which become crimes, but they are not in the federal criminal code. And well, then if we have so many federal crimes, now we need a federal police force to enforce all of these federal crimes. Well, we don’t have a federal police force, so what we do is we enact legislation that seems to come within the jurisdiction of existing federal law enforcement. And the law enforcement favorite today is Homeland Security. That’s everybody’s favorite federal law enforcement du jour. So I guess, interestingly enough, we have a crime—or a non-crime—sex, and who enforces it? Homeland Security. Well, how could Homeland Security be enforcing a federal sex crime? Well, because we add in the “trafficking” component, and then it conjures up images—that Liz will explain—of Asian young teenage girls being carried away and across the border and from Central America. So tell us what the pop culture hysteria is. What does the media help us imagine is going on? And Liz, what is the reality of sex trafficking?
Elizabeth Nolan Brown: Yeah, well, hold on. I just want to digress one second and go back because you were talking about federal laws, and I think it’s really interesting that I think the very first federal immigration law, anti-immigration restriction passed in the United States, had to do with Chinese immigrants because they were worried about Chinese women coming here and being sex workers and being prostitutes. So they passed this law because they were like, “There’s too many Chinese people coming and they’re bringing the opium,” yeah, in the 1880s, the Chinese Exclusion Act. And so I wrote a piece for Reason a couple years ago called “America’s Sex Police,” sort of tying the stuff that the FBI and Homeland Security and all that are doing today to the sort of formation of a federal police force. And it’s really interesting if you look at how tied the idea was of the Secret Service and the initial FBI and all that to policing red-light districts in cities.
And that’s, you know, the Mann Act, which was passed in 1910, originally called the “White Slavery Act,” because we were seeing this sort of same panic about sexuality and about women’s sort of independence and, you know, innocence and girls being corrupted. And you had this whole, you know, idea back then that girls were being lured into cities and having to be forced into sex. And so police passed the Mann Act, which said—because prostitution is not a federal crime, you know, then, now, it’s a small, it’s usually a misdemeanor crime—and so in order to take advantage of that, they passed the Mann Act, which says if you’re crossing state lines for prostitution or for immoral purposes, then the federal government can get involved. And that was really what allowed them to start getting in all these cities and the FBI to start teaming up with these local police forces way back in the day for the first time.
Bob Zadek: So what we had is we had prostitution, which was never and still is not, prostitution per se is not a federal crime. It is a—if anywhere, it is a state law crime, and states are free to decriminalize prostitution if they chose to do so, and the feds have nothing to say about it. But our government considers any area where there is no federal law to be a vacuum. It’s a criminal law vacuum that has to be filled by a federal crime. And the Mann Act, as Liz pointed out, 1910, which was passed, but they had to use bringing a woman across state lines or a prostitute across state lines for immoral purposes. Now, I should mention in passing, we all remember, if you remember early 20th-century history, that the Mann Act was used quite selectively and most often against blacks. So the Mann Act, like so much of our ugly criminal law history, was enacted for and used for ugly racial purposes. And that, you will see from Liz today, continues to be true today—that the criminalization and the criminal law enforcement of sex, sex work, is primarily along racial and economic lines, not by activity but by who does the activity.
Elizabeth Nolan Brown: Oh, 100 percent. Because when you see—so now you’ve got, just like back in 1910, you’ve got a lot of times the FBI or Homeland Security teaming up with local police departments or county sheriff’s departments around the country all the time and doing prostitution stings. But what they say is that they’re doing human trafficking stings. And that’s why, you know, the federal government will work out these task forces and in that way they’re able to funnel all of this money, all this federal law enforcement money to local police to do prostitution stings. And they, you know, yeah, they sell it as human trafficking. And the people that get caught up in these are—they’re not going after people who are super high-end, you know, they’re not the people who are working with their own websites and the really, you know, thousand-dollar-a-night madam. Right, they’re not going after those people. They’re not even largely going after, you know, middle-class sex workers. It’s usually people—or middle-class customers of sex workers either. Yeah, it’s usually people who are, you know, the most subsistence-level workers who are doing this. It’s the people who—and so you look at the mugshots and it’s very disproportionately, yeah, people of color or just, you know, it’s very disproportionately just people who were just not making a lot of money in this, not doing organized crime, anything like that, and they’re the ones who are getting caught up so much in these stings.
The Targeting of Online Platforms [14:43]
Bob Zadek: And from what I understand from your writing and from others, primarily from your writing, when these federal-state gangs of law enforcers conduct a sting operation and a raid on alleged sex trafficking—it’s the trafficking part that brings in the feds—law enforcement loves it because along the way they pick up some narcotics violations, they pick up some people who are conducting a massage parlor without a license (perish forbid, how will we ever survive, how will civilization survive?), so they pick up maybe some illegal drugs along the way, maybe some illegal guns, and it’s sort of a nice day in the office. So they use the cover of sex trafficking to conduct a sting and improve their law enforcement stats.
Now, the intrusion of federal law goes even beyond the trafficking and it involves the media, and in a very interesting if not sinister way. And it involved Craigslist along the way and it involved a story Liz that you covered, Backpage, along the way. So once we have the federal system intruding into state law—and by the way, prostitution is universally a misdemeanor. It is a low-level crime. It rarely results in any jail time. It is like a parking ticket. Well, a parking ticket is a violation, not a misdemeanor, but nobody pays much attention. No cop ever gets to be the chief of police because he has five prostitution busts. So nobody cares from a criminal law standpoint. But once you get involved in federal law and in trafficking, it is a different deal. So tell us about how and the effect of how the media—Craigslist and Backpage specifically, but of course also all online media—how have they been swept into this hysteria? And you use the word hysteria, and it’s the right word. How have they been swept into the federal sex trafficking hysteria and what has been the fallout? Tell us in a few words about Backpage, Craigslist, and online media in general.
Elizabeth Nolan Brown: Yeah, well, like you said, in these stings, they tend to arrest all sorts of people for, like you said, all sorts of crimes, all sorts of very low-level crimes. But when they announce these to the press, they’ll say, “We did this human trafficking bust and we arrested hundreds of people.” And it makes it sound a lot like this is a huge problem, like just one little city and they got hundreds of human traffickers. And then you look, and I mean, oftentimes there are zero, almost always zero human trafficking arrests whatsoever. Sometimes there might be pimping charges, which pimping is a weird charge because it doesn’t mean that force or coercion was involved, it just means a third party was involved. So obviously some pimps can be very bad and awful, but sometimes it’s just like a sex worker working with another sex worker could be charged with pimping just because they’re helping out. So yeah, you don’t see any of these serious charges, you just see all of these smaller charges getting counted. But if you read past the headlines…
I thought when you were asking about the media at first that you were talking about how bad the media is at covering this, because I think—we’ll get to that. That’s, yeah, that’s a big part of the problem. But what ends up happening, yeah, is that, you know, everyone thinks there’s this huge epidemic and Craigslist and Backpage and other websites—there’s been a bunch that have been shut down by the feds, that are smaller regional websites—where, you know, either they’re general classified ad websites—Craigslist and Backpage were just like the back pages of, you know, newspapers that had classifieds for jobs and for cars and also an adult services section where you’d have sex workers, dominatrices, strip clubs, all sorts of things being offered. And the federal government really didn’t like that because this was—I don’t know how this started as a target so much as, I mean, I kind of do, but it’s more that they just picked it and it was like, “You know what? This is a very visible thing we can attack and say that we’re going after sex trafficking,” in the same way that they do with these stings.
And so, you know, they’ve said that Craigslist needed to take down its adult services section. It did. It removed the words “adult services” from the website. Sex ads continued to be there, if anyone who looked could see, I mean, both personals but also sex work ads, prostitution ads, but they had taken that little part off their site. So then the authorities started going after Backpage. And, you know, that ended with them being arrested.
Bob Zadek: And Backpage was a mainstream, long-standing, totally legitimate media. It was paper media and online media, started by two fellows to make money and to be journalists, and it was widely read alternative media, sort of like in the model of The Village Voice.
Elizabeth Nolan Brown: Yeah, well, they actually ended up owning The Village Voice for a while. They started in the 1960s as an anti-war paper. They owned all these alt-weeklies and they say that, you know, they had classified advertising in the back of the newspapers, in the back of the print newspapers. That’s what paid for the journalism. And these guys have won so many awards. I think that’s one of the weird things is people don’t know. People are now saying, “Well, why are they fighting the federal government on this?” and it’s, well, they’ve been for four decades fighting the federal government on all these freedom of speech issues so much.
Section 230 and Platform Liability [20:41]
Bob Zadek: So Backpage carried, as The Village Voice did—I remember growing up and I used to read as a teenage boy and a young man reading The Village Voice, and the first thing I turned to was the personal ads in the back. It was kind of a little bit deliciously salacious. I could fantasize a little bit, but it was of course purely harmless. And that was kind of the model. So the Backpage was a for-profit alt-media, but with fairly high-quality journalism, and they carried, as Craigslist did also, they carried personal ads, aka adult advertising and adult services. But what in the world does that have to do with the violation of federal law, a publication publishing a service which connected up males and females? What in God’s name is wrong with that?
Elizabeth Nolan Brown: Well, because obviously when you’re going to have an ad platform, any sort of open internet platform, any sort of social media platform—pretty much all of our media today is based on a thing where any user can sign up, you know, Facebook, Instagram, Twitter, any user can sign up and they can post stuff. And there’s filters that and there’s moderators that say, you know, “You can’t post this certain kind of content,” and I’m talking, you know, across the board. But if people do post that kind of content, the website generally can’t be held responsible. It’s kind of complicated, but basically, you know, if you go on Twitter and say and make a true threat, a credible threat against someone, well, you can be in trouble for that, but Twitter can’t be in trouble.
So people wanted to say, “Okay, well, prostitution is happening on Backpage and on Craigslist even though it’s illegal, even though they say you can’t advertise anything illegal, but clearly some things were coded for prostitution.” And sometimes you weren’t allowed to be a minor, you weren’t allowed to post if you were under age, but people would say that they were adults and then they would post. And they’d get picked up by police, police would find out that they were underage, and then so they’re like, “Oh, so they’re guilty of sex trafficking because they allowed these ads to publish.” Now, obviously, if a minor is posting themselves or if someone is doing that for them, that person is guilty, and the person who posted the ad for a trafficking victim should be held responsible. But the government wanted to hold the websites themselves responsible. And they tried—various attorneys general tried, sued Backpage, various people sued them in civil court and have tried so hard—and judges just kept saying, “No, look, federal law prohibits you from doing this. This is the law. If you want to change the law”—and now they have done that—but, you know, they said, “You can’t do this.”
Bob Zadek: What I think is interesting is that, you know, the founders of Backpage and several of their former leaders, yeah, they’re all still—they’ve been arrested, their trial’s not till 2020 even though they were arrested last spring. But they’re not being charged with any sort of charges related to sex trafficking or anything like that. They’re being charged with money laundering for allegedly allowing prostitution ads to run on the site. And what’s interesting is the federal law violation of, in effect, publishing ads that promote sex trafficking—now that’s my dumbing down the language of the statute, but that’s what it says—but the crime is a felony, even though the act they are promoting is a misdemeanor.
And what’s really strange, and what’s so offensive to us libertarians, is that prostitution, as I said at the opening of the show, prostitution, if it is a crime, it is a misdemeanor, and in some states it’s legal—in Nevada, it of course is legal but regulated, but it is otherwise lawful. And it should be that way so citizens who are close to the activity should decide if they want to criminalize or not criminalize it. There has never been a federal referendum on whether as a country we should criminalize prostitution. And to think of 350 million people being regulated by one moral statement is wrong, it’s obscene, and the federal government has no business regulating that behavior. Now, they don’t regulate prostitution, but they regulate the promotion of prostitution.
Feminism and the “My Body, My Choice” Hypocrisy [26:52]
(Sponsor break omitted)
Bob Zadek: Welcome back to The Bob Zadek Show. This morning’s guest is Elizabeth Nolan Brown. She covers the area, among others, of sex trafficking, feminism and its effect upon the regulation of sex, and she has been covering in great detail the hysteria involving the fear that we are being inundated with the crime of sex trafficking. Now, we all have this image when we think about sex trafficking of handcuffed young women and adult women being brought against their will with force and coercion into the United States because it is such a healthy market for teenage sex, so the fear goes, and therefore it has become federalized as yet another federal crime. Prostitution has generally been a state-level and local-level crime; now it is becoming federalized.
And what’s most interesting about the crime of sex, which of course is not a crime, but what’s most interesting is for almost all of the history of our planet—I cannot speak for other planets, but I can speak for Earth—in almost the entire history of the civilization of our planet, the sale of sex has been not a crime. Indeed, it has been an honorable, recognized activity and indeed in most civilizations socially necessary. So in the span of human experience, it is only in a couple of hundred years of the American social experiment that sex has become a crime at all. So just to put the activity in perspective. And indeed, even in most religious dogma, the sale of sex is either recognized as an activity that goes on and it certainly is not considered generally to be a sin. But we are in this puritanical pocket of American history when sex has become a crime, and at least it is now.
Now Liz, sex has become a crime, I guess, to protect women. But to protect somebody, you protect somebody by preventing them from doing what they are otherwise willing to do. And when I say prostitution, when we use it here on this show, Liz was very careful to point out that we of course exclude fraud, force, coercion, and threats. So we are talking about, and on this show I limit it to, a voluntary act. Now, I’m not talking about—and Liz may want to mention—the concept of exploitation, an overused concept. The fact that somebody really needs the money is not in and of itself exploitation. Many people do what I, in my middle-class worldview, would consider to be fairly unpleasant work, but it’s lawful and I hope I never had to do it, but I would do it if I needed the money. So Liz, tell us about a woman’s view of the crime of sex and who is being protected.
Elizabeth Nolan Brown: Yeah, so I obviously don’t think that sexual activity between consenting adults should be criminalized at all. If two adults are consenting to it, whether or not there’s money involved, I don’t think that that should be a crime. But what I like to tell people is—and I mean, maybe I’m talking to a libertarian audience, so people are more sympathetic to my view on this anyways, but not all libertarians necessarily think the same way, and especially people who are not libertarians don’t tend to think the same way. And what I try to say is you don’t have to like prostitution. You don’t have to like sex work. You don’t have to like that this happens. And in fact, you can advocate against it, right? If, you know, you’re a religious person and that’s one of your missions is to help people get out of doing that, great.
But we need to make it not a crime because when it’s a crime, it creates all of these more harms, just like with the drug war. Same kind of thing. Like, people don’t have to like that people are going to smoke pot. You don’t have to smoke pot yourself. But we all know that in the practice of policing people smoking pot, we’ve just ended up making it a black market, we’ve ended up creating more violence, we’ve ended up, you know, putting a whole bunch of innocent people in jail. So I think it’s the same sort of thing here, and that’s always what I really like to hammer home is that by making prostitution, by making paid sex between consenting adults a crime, you have, you know, the cops going and doing these raids, you have women getting thrown in jail, you have people getting criminal records, you have them not being able to work in, you know, brothels, work together in places like in Nevada. You don’t see hardly any violence against sex workers at these legal brothels in Nevada because they can screen clients, they can do all this stuff. Even, you know, just sex workers that are working independently, if they could just be more open about their work and clients could be more open about their work, they could have much better screening practices, things like this. And there’s just a ton of different ways where the sole fact of it being a crime makes things more dangerous for the people involved. And that’s whether the people involved are doing it by choice or not.
And I think that’s a weird thing to say too, but like, you know, there are obviously some people who are doing this and they don’t necessarily want it to be the thing that they’re doing forever, and there are some people who are doing this and they don’t want to be doing it at all. They might have a violent partner or husband or pimp or family or whatever who is getting them. Even those people deserve to, if they’re going to be doing this, be able to do it in a way that is safest and that is not going to, you know, put them in increased contact with serial killers and things like that. So I think that’s really what is important to remember here is that, you know, people say that they want to protect women, they want to protect victims, they want to stop exploitation, but by making it a crime, we’re actually making all of those things worse.
The Safety Implications of Criminalization [32:53]
Bob Zadek: And safety is really—I’m glad you mentioned safety, because it is so clear how by criminalizing prostitution and sending it into the shadows where you cannot get any protection of the law and from people who would harm you, and especially the advertising of sex work and the screening through a Craigslist or through a Backpage, how the acts that the federal government has criminalized actually offer an enormous amount of protection for the sex workers. So safety, since I guess the motivation of those who would punish sex work—putting aside the fact that it is merely the extension of a private set of moral principles into the criminal law system, something that us libertarians find offensive (morality is a very private activity and a very private concept, and you should not be able to enforce your moral worldview with a gun on somebody else)—so putting aside the morality that will always exist, but from the standpoint of protection of women, there seems to be utter hypocrisy in the women’s movement when they on the one hand rail against sex work as exploitation and they don’t listen to the women who they are seeking to protect. So tell us about the confluence of safety and criminalization of sex work.
Elizabeth Nolan Brown: Yeah, one of the best slogans of the sex worker rights movement, I think, is “Rights not rescue, rights not raids.” And I think that’s really important because like you were just saying, they cannot—people who experience violence at the hands of a customer, of an exploitative pimp or something, they very often feel like they cannot go to the police and report it because then they will be arrested themselves for prostitution. Also, the online stuff has been a huge boon, if you talk to anybody who is involved in this work, has been a huge boon for safety and for independence. Because it’s very simple if you think about it. If you just are going up to someone at a bar or on the street or whatever and you have to make a split-second decision about whether you should get in that car, whether you should go with them, it’s very hard to know anything about a person. Now, obviously, emailing with someone or them having a profile on a website and, you know, you get to see their online history, you can ask them for their real identity, things like that—that’s obviously not a foolproof system, right? Like, people can lie, but it does give them that opportunity.
I mean, so many sex workers now, they screen clients. They make you give references from other sex workers you’ve visited, you know, or they’ll make people actually show their real IDs. And this is a thing that clients actually have been willing to do too, because everybody wants to be safe. Everybody wants to have the safest environment. But now I hear that people are getting much less willing to go along—customers are getting much less willing to go along with some of these safety measures because they know that the federal government has been increasing and ramping up prostitution stings, and especially ramping up prostitution stings where they arrest the men. This is a thing where, I mean, it’s obviously good that they’re arresting less of the women, but now they’ve just sort of replaced that with like, “Well, we want to be compassionate, so we’re going to arrest a few less women, but then we’re going to arrest like ten times as many men for this.” And so you have a situation where, you know, the federal government is making the customers more afraid to go through screening measures, they’re taking away the websites and the platforms where people are able to do that, and it drives people back to the streets, it drives people back to have to go through a middleman who may be, you know, at the worst very violent, at the best taking a cut of money that that person could just be having themselves if they could just post their own ad on the internet and interact with clients directly.
Bob Zadek: And at the very core, it strikes me as hypocrisy writ large, especially for the women’s movement to rail as strongly as they do against the freedom of a woman—and remember, Liz and I are excluding from this conversation force, coercion, true sex slavery. We are talking about a woman who has decided the highest and best use of her time and the most pleasant and effective way to make money is by selling sex. She has made that decision, she has alternatives, and she has said, pound for pound, dollar for dollar, that’s where I can do my best and make the best use of my time. So you have to ask yourself what in the world is wrong with that, especially when you compare that to the sloganeering involving the abortion battle—a subject we are not going to discuss this morning, it’s a different topic—but when you take the sloganeering of “it’s my body, I will do what I want with it,” and when that relates to a fetus, that’s one thing, but when that relates to the same body parts but a different use, you get to a totally different conclusion. It strikes me as being utterly hypocritical.
Now Liz, you are very much in touch with the feminist movement, all for better and for worse, and of course as every movement there are two sides. What do the feminists say? What is their best argument as to why they as feminists and independents of women, what is their best argument—even though you might not subscribe to it and probably do not—for defending their antagonism toward legalization of prostitution?
Elizabeth Nolan Brown: I think this is obviously a long-running divide in the women’s movement. You know, people might remember in the ’70s and ’80s and ’90s—some of that’s before my time, but I’ve read a lot about the sex wars back then. That usually concentrated on porn. You know, you had the Andrea Dworkins and the Catharine MacKinnons and that wave of, you know, sex-negative feminists, I guess is one term people will use for them. And their arguments varied. It’s usually something like, you know, because it would be giving men access to women’s bodies for pay, then it teaches men that they think that women are objects they can purchase. Or because of the way that sex is and it’s always a man penetrating a woman, that it’s inherently, you know, exploitative to have money involved in that. And it’s—I mean, it’s hard for me to say what the best case argument is because I think they’re all kind of crap.
You see those arguments still definitely being made today, but the scary thing kind of is that they’ve sort of realized that some of this wasn’t really effective, and that’s why you’ve seen the conflation of the sex trafficking that we see today. Because that same sort of coalition of women’s groups—a lot of them go by the term “radical feminists,” that doesn’t mean just like really, really feminist, it’s like a specific branch of feminism that tends to have very specific views and one of those is that all prostitution, all porn, anything like that is inherently exploitative and women shouldn’t do it. But so they teamed up with, you know, Christian conservatives on that sort of front when they worked toward porn, and then after that they were like, “We’re going to go after prostitution.” But they knew that sort of—there’s also a lot of younger feminists, you know, feminists from the ’90s and the 2000s, feminists my age and a little—I’m in my mid-30s—so, you know, a little older and a little younger than me, I think, who definitely view it differently. More people view it differently and they were not having that. So there was this deliberate movement to conflate all prostitution or all sex work in general with human trafficking in order to get more people to be against all of it. And I think they’ve been really, really effective because I do think for a while there were—we were making a lot of progress with the majority of the feminist movements being okay with prostitution and being okay with women doing sex work, and I think we’re starting to see the pendulum swing back the other way. You know, I think it’s been swinging one way from the ’90s and 2000s up until now, and it’s been swinging though lately this decade because they’ve been very successful, these groups have been very successful at blurring the issue.
The Ratchet of Federal Power [41:31]
Bob Zadek: Now, we talked—we’ve used the word hysteria a number of times during our hour together. Is that the appropriate word? Tell us about the concept of sex trafficking, because I think one could conclude—and will conclude after you respond—that sex trafficking, or is it fair to say it is an invented hysteria? Invented because, as we have said many times on my show, once the government instills fear in the population about anything, then the population is willing to cede additional power to the government to protect them. So fear is a very valuable governmental tool to acquire a disproportionate, indeed unconstitutional, amount of power. So how much is there any reality, is there any “there” there in sex trafficking? Put the concept of sex trafficking into perspective. Should our listeners just ignore the article? Does it tell them anything about society? Is there anything to be concerned about with sex trafficking? Can you put it into a reality test?
Elizabeth Nolan Brown: Yeah, so if we’re talking about, you know, this image, the Liam Neeson movie Taken, the women being handcuffed in shipping containers or as Trump has been saying recently, duct-taped and shipped in mass across borders—no. I mean, there is just zero evidence for that. Even people at like the State Department and things like that when they have been like, “No, that’s not the way it’s happening, that’s actually not the way…” I mean, the people who are out there doing publicly stuff. But if you look at their reports where they’re actually talking about what’s happening, there’s just no evidence for that. And, you know, we go on these massive—like Operation Cross Country is just one—but the FBI does this massive sweep every year where they help and Homeland Security joins in and you get, you know, hundreds of federal agents and police and all doing this stuff, and they find like three people that they arrest on Mann Act charges, which is just crossing state lines again. So there is no evidence that anything like this crazy epidemic of sexual slavery and whatever is happening.
That being said, of course, like, violence happens in this sphere. You know, it’s just not this sort of organized, it’s not generally this crazy thing. It looks more like domestic violence. It looks more like, you know, foster care kids who run away and get caught up in the wrong group because they need to get by on the streets. Like, it looks more like things like that, ordinary things which are definitely bad and we definitely should stop, but they’re things we’ve always known and had and they are existing problems. And they are existing and there is existing criminal law structure to deal with it. It’s not a headline that crime exists. The headline, or the negative headline, is there is no wave of sex trafficking.
And I’ll remind some of our, dare I say, older listeners in the 1990s—some of my listeners may not have been born then—but in the 1990s, if you remember, there was about a decade of fear about preschools abusing and satanic lessons, and there was this case in Massachusetts and there was—everybody was nervous, parents were keeping their kids at home, and there was this fear and it like went away. It never existed. Indeed, even terrorism, where we end up with a trillion-dollar infrastructure, terrorism existed with one security failure with the World Trade Center, and look what that has given birth to in our country, how everybody’s life has been profoundly altered. And by altered, I mean all of a sudden the police power is more involved in our everyday lives every time you fly, for example. So fear is an incredibly potent tool which government can use to acquire power.
Now, ask yourselves—I ask my friends out there to ask yourselves—when we have extraordinary government regulation like these sex trafficking laws to solve a problem, has anybody ever said, “Oh, the problem went away, let’s repeal the statute”? No, it is a ratchet. We end up with more federal law, no more problem. So Liz, can you trace—we have a few minutes left, but you have valuable insights—is it possible in a couple of minutes to trace the history of this? Is there a beginning and a middle of it?
Elizabeth Nolan Brown: Yeah, I think so. So like I said earlier, they passed this first anti-sex trafficking law at the federal level in 2000. Since then, every state has passed their own. And again, yes, most of the things we’re talking about already were criminalized under federal law—I mean, all the things we’re talking about already were criminalized under federal law, you know, it was just under different laws, you know. Obviously, forcing someone into prostitution was already a crime before we made it this other specific thing for it. But so we have this, and it’s been reauthorized—so that was in 2000—and it’s been reauthorized every few years since then. And it turns out, you know, they made a huge deal at the beginning and saying we need to find all these people, and they couldn’t, so then it was like, “Okay, well, let’s expand what it means. Let’s expand what it means.” And that’s why you get now advertising counts as sex trafficking. Now, purchasing sex from someone counts—and it specifically says no knowledge of their age is not a defense. So even if, you know, the person has a fake ID and you think they’re 18, you could be charged as a sex trafficker if you paid them for sex even if the cops freely admit, “Yeah, we have no way you could have known.” That counts. And they just keep adding to this thing so they can, A, ramp up their statistics. In each of these bills too, they put in more a lot of various civil liberties violations, and nobody pays attention because these are like massive bills, like, you know, 50 pages long with all these weird statutes. And they’ll say, “This is a bill to stop sex trafficking,” every few years we’ve reauthorized them. Politicians have gotten to say, “Hey, I’m doing this thing,” and they really like it because it’s a really good publicity getter for them. And nobody pays attention to what’s actually in the bills, which is—clearly it’s already a crime. We don’t need to make it more of a crime, and it’s all these extras that they tuck in.
Bob Zadek: It’s a great way to get re-elected is to pass a bill to protect children or women. Now Liz, we are regretfully—it breaks my heart—we are running out of time. Tell our friends out there how they can follow your writing at Reason and elsewhere.
Elizabeth Nolan Brown: Yeah, please visit reason.com. I’m on Twitter @ENBrown, and I also run a group called Feminists for Liberty and we’re feministsforliberty.com and on Twitter @FeministLiberty.
Bob Zadek: And Liz, of course, writes at Reason. Tell us how our friends can follow Reason magazine and the Reason Foundation.
Elizabeth Nolan Brown: Yeah, go to reason.com and you can find us on Twitter @Reason, and you can subscribe there or you can read it for free online.
Bob Zadek: Reason is to me the must-read publication. I follow their Twitter feed, I follow their blog, they have an editors’ roundtable—I was with the editors this weekend. It is a wonderful, light and breezy way to start your day. Liz, thank you so much for spending an hour with us this Sunday morning. Thanks to all of my friends out there for giving us an hour of your valuable time. This is Bob Zadek saying so long for now. I’ll be back again next Sunday. Have a nice rest of the weekend.