Matt Smith of the SF Weekly recently discovered that California was providing state-subsidized training to the 100 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."
So, what's Cybernet's competitive business? Exactly. High-quality, fetish porn videos. During his sleuthing, Mr. Smith submitted a public records request to the state of California, which–upon discovering what kind of stimulus it was providing–cut the funding for Cybernet.
The ensuing back-and-forth makes for decent copy:
The stripping of Kink.com's funding raises an intriguing question: Does the state's refusal to train porn-makers violate constitutional free-speech guarantees?…
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….
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 court said, 'The government is free to subsidize speech it likes, and free to refuse to subsidize speech with which it disagrees,'" Massey said.
Whole thing here.
Daniel Riedel of Kink.com said the company plans to fight to keep its subsidy. Perhaps the issue will go to court and the L.A. Times will have to recycle the headline "Upcoming trial will see hours of hard-core fetish pornography."
Reason Foundation analyst Shikha Dalmia interviewed controversial California Judge Alex Kozinski here. Contributing Editor Greg Beato explained Washington's new crackdown on porn. For the May edition, Beato takes the National Endowment for the Arts to task for its government stimulation and wonders: "Wouldn't it have been more provocative, inspiring, and educational if they'd simply said, 'No, thanks'?"
High Five: OpenMarkets.org