Romney’s Pornography Dilemma

The headline in the New York Times reads " Romney Criticized for Hotel Pornography ," which makes it sound as though the Republican presidential candidate had been caught watching dirty movies in his hotel room.

The reality is that, from 1992 to 2001, Romney was a director of Marriott International, Inc. , a $17 billion public company that makes pay-per-view videos, including pornographic ones, available to guests in many of its hotels. According to Phil Burress, president of Citizens for Community Values: "Marriott is a major pornographer. And even though [Romney] may have fought it, everyone on that board is a hypocrite for presenting themselves as family values [ sic ] when their hotels offer 70 different types of hardcore pornography."

Romney’s defense is that he is against children viewing pornography: "I am not pursuing an effort to try and stop adults from being able to acquire or see things that I find objectionable; that’s their right. But I do vehemently oppose practices or business procedures that will allow kids to be exposed to obscenity," says the former Massachusetts governor.

There’s a lot lacking in this answer. For one thing, children in a hotel room may easily order up a pornographic video on pay-per-view. For another, there is a big difference between recognizing that adults have a legal right to view pornography and participating in the management of a company that sells pornography.

So, if we think that distributing pornography is wrong, what could Romney, as a director of Marriott, have done to stop the company from selling pornography? Most obviously, he could have tried to convince his fellow board members that this practice was immoral and ought to be discontinued. This, I think, Romney had a duty to do. Whether he in fact did so is unclear. Someone ought to ask him about this and demand a clear answer.

Assuming Romney did try to get the company to stop selling pornography, then once he failed, he would have had few options. In fact, the only thing he could have done is resign.

Some people, of course, will say that this is just what he should have done. I’m not so sure. One reason I’m not so sure is that I myself invest in companies that sell pornography. To be sure, my ownership interest is quite small and very indirect, for it comes about because my retirement savings are invested in stock index funds that include the shares of thousands of different companies, including (I assume, for I don’t really know for sure) Marriott, as well as more direct purveyors of pornography such as the cable-television companies Comcast and Time-Warner.

Given the modest size of my investments, the extremely broad diversification of index funds, and the relatively small portion of the earnings of public companies attributable to pornography, I doubt I make more than a dollar a year from my pornography investments.

If I wanted to avoid making this tiny illicit profit, I could put my money in special "morally conscious" mutual funds that invest only in companies not involved in immoral businesses. I respect people who take this step, but I don’t think it’s morally required. The reason is that figuring out which companies avoid immoral activities isn’t easy and so consumes a significant amount of resources¯which means lower returns for investors in mutual funds that do this. Hence, if I put my money in morally managed funds instead of index funds, it would likely cost me hundreds of dollars per year in lower returns. I don’t think I’m morally required to incur a cost of hundreds of dollars per year to avoid one dollar in illicit profits that I wish I didn’t make. Better to take that dollar and some of the added returns from my current investments and donate them to a worthy cause. It would be different if I thought rearranging my investment portfolio would cause the guilty companies to stop selling pornography, but that’s entirely unrealistic.

Purists will disagree, saying it’s always wrong to profit from immoral activities, no matter how trivially and no matter what the cost of avoiding such profit. But this is implausible. Consider an employee of Marriott, an unskilled individual with a family to support whose work at Marriott includes no direct involvement with pornography. This individual’s paycheck is funded in part with revenues derived from pornography. Indeed, he profits from pornography much more than I do, both absolutely and on a percent basis. Is he morally required to quit his job, even if he can’t find another one to support his family? I don’t think so.

The reason is that, although there are some actions that are always wrong, nevertheless profiting from such activities, indirectly and contrary to one’s desire, is not always wrong. If one’s own actions are moral in themselves (as earning a living by cleaning hotel rooms or investing one’s retirement savings in index funds no doubt are), modifying one’s behavior to avoid profiting from illicit activities can be very costly. Since one’s own actions are, in themselves, morally licit, the question of whether one must forgo them to avoid the illicit profit is a question of reasonability in the totality of the facts and circumstances.

Consider, if you will, what would happen if you wanted to avoid completely profiting from immoral businesses. If you have retirement savings, you can avoid investing in the equity securities of companies like Marriott and Comcast by investing in a morally managed mutual fund. But if you have a bank account, you’ll be indirectly invested in all the companies to which the bank lends money, and that may very well include companies like Marriott and Comcast. Hence, the only pure course will be to close all your bank accounts. Similarly, you’ll be unable to purchase insurance, for insurance companies derive much of their income by investing premiums before they have to pay out claims, and these investments will sometimes be in companies like Marriott and Comcast. Hence, no insurance either.

Nor will finding work be easy. Not only must you avoid the obviously tainted companies like Marriott and Comcast, but there are also businesses, seemingly quite innocent, that benefit indirectly from pornography. The United States Postal Service, for instance, delivers pornographic magazines and so derives part of its revenues from pornography. Similarly, eBay sells pornographic materials in its online auctions. Google promotes pornographic websites by linking to them in its search engine. And, of course, Canon, Sony, and Panasonic, which manufacture and market video equipment, are important suppliers to the pornography industry.

For that matter, given that the government taxes income derived from pornography on the same basis as it taxes other income, purists ought not accept any benefit from the government either, including, say, social security payments or even the use of the public roads. These are, in the end, in part financed by pornography.

So avoiding benefiting from pornography or other immoral but legal businesses is not realistically possible. The issue¯with Romney, with me, and with everyone else¯is thus how much people are required to do to dissociate themselves from an activity they believe is immoral. This is a question of what’s reasonable in the circumstances, including how much one is benefiting from the illicit activity, how directly one is involved in it, and how costly avoiding the benefit would be.

A corporate director like Romney is deeply involved in what a company does, but I don’t think he’s morally responsible for what the company does over his objection. (It’s clear, incidentally, that he isn’t legally responsible for such acts.) Assuming Romney objected to Marriott’s selling pornography and was unable to effect a change in the company’s practices, perhaps he ought to have resigned from the Marriott board. But, then again, perhaps not. If only a small percentage of the company’s profits are derived from pornography and if Romney had reasonable grounds for thinking he could do more good by continuing to serve on Marriott’s board than by resigning, he was likely right to remain on the board.

The one view that is clearly wrong is the absolutely purist one asserted by Mr. Burress from Citizens for Community Values. Romney might be a hypocrite for staying on the Marriott board if he never even objected to Marriott’s selling pornography, but the publicly available evidence doesn’t prove this. It’s at least equally plausible that Romney, powerless to make things at Marriott perfectly good, thought he should try to make them as little bad as possible. If so, he behaved rightly, not wrongly.

Robert T. Miller is assistant professor at the Villanova University School of Law.