Sex, Economics, and Other Legal Matters

Posner: I wouldn't say that. It depends on how you define the rule of law. If the rule of law means that law has to be a closed, logical system, mechanically administered with no discretion for judges, I think that's wrong. If the rule of law means that the judges are constrained by rules, so far as those rules are knowable, then when the rules aren't knowable, when judges have discretion for whatever reason -- the novelty of the issue, the confusion of the legislation, the vagueness of the constitutional provision -- then the rule of law requires that the judges act in a nonpartisan fashion, that they be reasonable and intelligent and nonpolitical. That's the best you can expect of them if it's a truly ambiguous case.

Reason: In 1990 you wrote a famous concurring opinion in a case involving nude dancing, arguing that it has limited protection under the First Amendment. Was this part of being a pragmatic judge? Part of your reasoning seems to be that it's just too much trouble to prevent all sorts of nude dancing. If it's not based on rights, what's the argument?

Posner: As a libertarian, I don't think nude dancing in private should be regulated. But as a judge, my reaction is somewhat different, which is that the problem of drawing lines is impossible. This nude dancing, although it has minimal artistic value, is on a continuum with entertainment and art in general, which often has a strong erotic cast. The only reason to think this nude dancing was in a different class was that its artistic aspirations were extremely modest. But that doesn't seem to me a good reason for distinguishing it from lyric opera.

Reason: Do you get time to see movies and TV?

Posner: My wife and I don't go to the theaters; that's too much of a bother. But we rent movies or buy movies. I like comedies. I don't like serious movies. I make an occasional exception, but I like comedies and my tastes are pretty catholic. I'm very enthusiastic for the Marx Brothers; I like Joe Pesci a lot; I like Meg Ryan; I like the Cary Grant-Katharine Hepburn movies.

Reason: What about TV?

Posner: I do channel flipping late at night, so I see little pieces of this and that. Occasionally, I'll see an old movie or sometimes the animal channel. Or I'll watch the cable news programs. I don't have a very good sense of the full television sphere. I have never seen a situation comedy.

Reason: But you understand, as a libertarian, that some people like Jerry Springer and some people like PBS.

Posner: I actually had a case involving one of these let-it-all-hang-out talk shows. It was Jerry Lopez. Have you ever heard of him? He disappeared. He had one of these programs where ordinary people reveal their private lives in the most immodest fashion. That struck me as really vulgar, but if that's what people want. ...It was all about 15-year-olds getting pregnant and being confronted by their mothers' lovers. Weird stuff, but the funny thing about it was they all seemed to be having a great time. The audience was really nosy, asking really personal questions -- very vulgar entertainment for someone of my generation. But people are free to do whatever they want. It doesn't seem to do any harm.

Reason: You've said that if people were forced to stop watching TV, it's not as if they would turn to reading philosophy.

Posner: Sweden has very, very bad TV. They have only a few channels, poor reception, government channels. It's only on a few hours at night, I think. It's really incomplete. So I asked a friend of mine, a Swedish economist, what Swedes do. Do they read more? He said no. They don't read more. What they do, in contrast to America, is more family socializing. They draw with each other. Family socializing, family conversation takes place, usually on an extremely low plane. Americans probably are better informed than they would be if they had no television, because then they would just be talking to each other.