Legalized Prostitution's Lambo-Pinto Problem

Megan McArdle responds to critics who have chided her “rage” against “the illegality of something that a majority of my fellow citizens think should be illegal” — namely, prostitution. (I used the word “wrath,” not entirely unsympathetically.) There are two key parts of her argument that rage is appropriate because illegal prostitution is outrageous:

(1) prostitution involves “voluntary transactions between consenting adults that do not directly and concretely harm a third party.”

(2) legalized prostitution would in overwhelming or significant part remain “discreet and out of the public eye.” To wit,

The finer hotels in our nation’s capitol have not been noticeably degraded by the presence of the occasional young and improbably well dressed woman tapping discreetly at the doors to a few of their rooms.

Now I’m going to ignore the first, arguably more central claim, and focus on the second. But it’s important to remember that prostitution is not defined as the voluntary sex-purchasing-and-selling act in which it successfully culminates. The purpose of prostitution is not prostitution itself. This is important because much of what society wants to prohibit and punish is the public loitering around of whores — and all the attendant unpleasantness that comes with it.

Of course the reason I mention this is that Megan’s points (1) and (2) are more intimately related than they first appear. The definition of prostitution, naturally enough, influences how reasonable and acceptable we judge the practice to be. When libertarians (or Martha Nussbaum) want to legalize prostitution, what they really want to legalize are contracts to perform sex; but since these two things are not identical, they then need to and want to explain why it is that legalized prostitution would be aesthetically and morally better in every way than illegal prostitution: cleaner, safer, more transparent, more just, better-looking whores, etc. Because what people fear when they think of legal prostitution is not more people who want to have sex having sex, but rather more people who are concerned with having sex hanging around, junking up public spaces, and engaging in unappealing and undesirable public behavior before they find a contractual partner and head upstairs or into the limo or wherever.

So if legalized prostitution could really be made as discreet and private as libertarians want and claim, I suspect that much of the public resistance to criminalization (in ‘enlightened’ states, at least) would crumble. Trouble is, this is not likely to happen, because legalizing prostitution legalizes high-class and low-class prostitution alike, and the market cannot provide the former without the latter. Open a market for cars and you get both Lambos and Pintos. Especially nowadays, when the culture at large loves its Lambo celebutantes and has little but love for, as the Beastie Boys put it, “classy hoes,” the real social opprobrium — the real ‘value judgment’ — keeping prostitution illegal is the widespread bias against unintelligent, poor, ugly people hanging around selling themselves to whoever’s buying. At the margin, legalizing prostitution might force some of the least suitable prostitutes out of the market, but I think we all know from collective and historical experience that the bar will still remain quite low — particularly in economic areas which are so depressed that they will not be lifted into bourgeoisdom by the influx of taxable, above-board hooking money.

The public presence of indiscreet and unappealing prostitutes (and their would-be customers), then, is a direct and concrete harm to the third, social party (town, neighborhood, their particular citizens, etc.) in a way that discreet, appealing prostitution is not. Unfortunately, the law cannot legalize the latter without legalizing the former — at least not without turning over hooking to some state regulatory agency, an FDA of the skin trade.

At least that’s the way it looks to me. Rejoinders?