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Porn vs. Prostitution : Why is it legal to pay someone for sex on camera?

2010-01-23 03:15:45

By Michelle TsaiPosted Friday, March 14, 2008, at 5:13 PM ET

Every time a politician is caught with an expensive prostitute or just with his

legs in a wide stance, Explainer readers have asked why laws don't treat

pornography and prostitution the same way. Having sex on camera for an adult

film generally won't get Jenna Jameson in trouble, but doing it with a john is

illegal everywhere except in parts of Nevada. What's the difference between

porn and prostitution?

Porn stars are paid to act (really); prostitutes are paid for sex. Performers

may engage in sex as part of their roles they presumably follow a script but

that doesn't count as sex for hire. Sex in the course of creating a movie or a

photo is just plain old expression, protected under the First Amendment. (Click

here for an excellent review of this distinction by Sherry F. Colb.)

Free-speech advocates argue that this ought to hold true for "gonzo" films, in

which the person behind the camera also joins in on the action; no significant

cases have gone to court, however. Compared with sexually explicit media,

though, live sex shows have received less protection. But the Supreme Court in

Oregon did overturn two state laws concerning sex shows, on free speech and

expression grounds, in 2005.

The porn-or-prostitution issue came up in the 1980s, when California

prosecutors argued that an adult film producer named Harold Freeman was guilty

of pimping because he had hired five women to perform sex acts for a movie

called Caught From Behind II. The state's highest court ruled that

anti-pandering, or anti-pimping, laws weren't intended to apply to porn films

and that Freeman's acting fees weren't paid "for the purpose of sexual arousal

or gratification, his own or the actors'." (The sexual gratification of people

who watched the movie was irrelevant.) The court also said that even if the

actors had engaged in prostitution, applying the anti-pandering laws to skin

flicks would impinge on the First Amendment.

Pornography has enjoyed First Amendment protection since the 1950s. In the

early 20th century, pornography was considered obscene, yet it was also

relatively rare. It wasn't until adult movies became more widespread that

authorities paid more attention. In a 1957 Supreme Court case, Roth v. United

States, Justice William Brennan not only wrote that obscenity wasn't protected

by the First Amendment, but also narrowed the definition of obscenity,

effectively legitimizing most pornography.

So, what's obscene pornography? The standards changed with different court

cases through the years. The test established by the Roth case asked whether

the material as a whole appealed to an average person's prurient interests. A

Massachusetts case involving the book John Cleland's Memoirs of a Woman of

Pleasure resulted in a three-pronged test: A work was obscene if it appealed to

prurient interests, offended community standards, and had no social value.

Prosecutors realized, however, that everything could be construed to have some

social value. Thus the current standard, called the Miller test, now

specifically singles out work that lacks any serious literary, artistic,

political, or scientific value.

Since California v. Freeman, prosecutors in other states have largely avoided

challenging the distinction between prostitution and pornography. The legal

buffer afforded by that ruling allowed the adult-film industry to proliferate

in the Golden State. If a similar decision were handed down in another state,

it might attract unwanted business from the porn industry. (The

prostitution-vs.-porn question will go to trial this spring in a pending

Florida case, however.)

Got a question about today's news? Ask the Explainer.

Explainer thanks David Hudson of Vanderbilt University Law School, Donald Marks

of Marks & Brooklier, Louis Sirkin of Sirkin Pinales & Schwartz, and Larry

Walters of Weston, Garrou, Walters & Mooney.