Why is Pornography Legal and Prostitution is Not
Provided by HG.org
It seems like the headlines are constantly filled with new stories of politicians quite literally caught with their pants down in scandals with prostitutes. This often raises the question of why we do not treat prostitution in the same was as pornography. Why is sex for money okay in one setting and not another?
The distinction is a very fine one and comes down to a string of cases finding that porn performances actually constitute acting subject to the artistic expression protections of the First Amendment to the United States Constitution. Thus, the distinction is that, at least in theory, porn stars are paid to act and prostitutes are paid for sex.
Performers may engage in sex as part of their roles, but that does not count as sex for hire. Sex in the course of creating a movie or a photo is an expression protected under the First Amendment. Generally, the one paying for the sex is also different than the one receiving the benefit of that act, further distancing it from a strictly sex-for-money arrangement. However, some free-speech advocates argue that even first person movies should be afforded this protection, though no significant cases have gone to court.
While recorded sexual performances have been relatively protected, live performances are much less so. Compared with sexually explicit media, live sex shows have very little protection under the law, though the Supreme Court in Oregon did overturn two state laws concerning sex shows on free speech and expression grounds in 2005.
The turning point in the porn-or-prostitution debate occurred in the 1980's in 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 (i.e., anti-pimping), laws were not intended to apply to porn films and that Freeman was not paying his performers "for the purpose of sexual arousal or gratification, his own or the actors'." The court also said that even if the actors had engaged in prostitution, applying the anti-pandering laws to these acted out performances would impinge on the First Amendment. Indeed, the California Court was very concerned that applying anti-pandering and prostitution laws in this situation could create a slippery slope of regulation that could be imposed against less and less explicit content, such as love scenes in art films.
Pornography has had a contentious relationship with the law since the middle of the Twentieth Century when, in the US Supreme Court case of Roth v. United States, Justice William Brennan not only wrote that obscenity was not protected by the First Amendment, but also narrowed the definition of obscenity, effectively legitimizing most pornography. The Roth Court indicated that obscene material could only be identified by asking whether the material as a whole appealed to an average person's prurient interests. A later Massachusetts case created 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.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
Performers may engage in sex as part of their roles, but that does not count as sex for hire. Sex in the course of creating a movie or a photo is an expression protected under the First Amendment. Generally, the one paying for the sex is also different than the one receiving the benefit of that act, further distancing it from a strictly sex-for-money arrangement. However, some free-speech advocates argue that even first person movies should be afforded this protection, though no significant cases have gone to court.
While recorded sexual performances have been relatively protected, live performances are much less so. Compared with sexually explicit media, live sex shows have very little protection under the law, though the Supreme Court in Oregon did overturn two state laws concerning sex shows on free speech and expression grounds in 2005.
The turning point in the porn-or-prostitution debate occurred in the 1980's in 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 (i.e., anti-pimping), laws were not intended to apply to porn films and that Freeman was not paying his performers "for the purpose of sexual arousal or gratification, his own or the actors'." The court also said that even if the actors had engaged in prostitution, applying the anti-pandering laws to these acted out performances would impinge on the First Amendment. Indeed, the California Court was very concerned that applying anti-pandering and prostitution laws in this situation could create a slippery slope of regulation that could be imposed against less and less explicit content, such as love scenes in art films.
Pornography has had a contentious relationship with the law since the middle of the Twentieth Century when, in the US Supreme Court case of Roth v. United States, Justice William Brennan not only wrote that obscenity was not protected by the First Amendment, but also narrowed the definition of obscenity, effectively legitimizing most pornography. The Roth Court indicated that obscene material could only be identified by asking whether the material as a whole appealed to an average person's prurient interests. A later Massachusetts case created 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.
Copyright HG.org - Google+
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
