Is Pornography prostitution????

[+ quoththeraven]

How does he demolish it? You either believe it's all wrong or all right. There was a time not that long ago when the law made no such distinction. Like the drug laws. Yesterday I was a criminal. Today I'm a responsible pot smoker.

 

Through the use of logic and reason?

 

It might not persuade a layperson. It would probably be more effective on a lawyer or an academic.

 

I am tempted to add a snarky "you haven't read many (or any) law review articles, have you" but seeing as the question has to do as much with legal status as your personal feelings, input from a law review article seems pretty applicable to me.

[caliguy]

Through the use of logic and reason?

I know what the law says. Otherwise it would still be illegal. What is your point and how exactly does that answer my question?

[uwsman2]

The article, for those who might be interested, is titled "The Freedom to Film Pornography," by Marc J. Randazza, and it is scheduled for publication in a forthcoming issue of the Nevada Law Review. SSRN, the Social Sciences Research Network, makes available drafts of scholarly articles. You have to subscribe to access the articles, but subscriptions are free and academic credentials are not required, you just have to fill out their on-line application form.

[+ saminseattle]

torture of animals

 

Actually, I think torturing animals on video may well be protected by the First Amendment. http://www.nytimes.com/2010/04/21/us/21scotus.html?pagewanted=all&_r=0. Or, at least dog-fighting is protected…not sure about crushing small animals (which is apparently an actual thing ).

 

In any event, I’m fairly certain that “hardcore pornography” used to be illegal because it was considered obscene. This wasn’t really that long ago (maybe the 1960’s?). But since the 1970’s or so, laws purporting to outlaw pornography have been trumped by the First Amendment based on the Supreme Court’s evolving constitutional interpretations. (Of course, this could always change back if the Court changed its mind, but that seems pretty doubtful at this point). I would imagine that going after porn studios/actors on a prostitution theory rather than an obscenity theory would lead to the same result: the First Amendment would trump laws against prostitution in this context.

 

All this raises an interesting question: can those advocating decriminalization of sex work look to the history of how pornography was legalized as a model? Certainly, there is an active industry group in California that presumably does lobbying and funds litigation on questions related to pornography (like the recent initiative they had). https://www.freespeechcoalition.com I know there are some litigation efforts around the broader sex work question, but my impression is that they are not as well funded. If all the sex workers and clients could get together and get organized, I think they could make a strong case. Having laws against pornography be unconstitutional and laws against prostitution by consenting adults in the privacy of their own homes be constitutional doesn’t make a lot of sense to me.

[+ quoththeraven]

Actually, I think torturing animals on video may well be protected by the First Amendment. http://www.nytimes.com/2010/04/21/us/21scotus.html?pagewanted=all&_r=0. Or, at least dog-fighting is protected…not sure about crushing small animals (which is apparently an actual thing ).

 

In any event, I’m fairly certain that “hardcore pornography” used to be illegal because it was considered obscene. This wasn’t really that long ago (maybe the 1960’s?). But since the 1970’s or so, laws purporting to outlaw pornography have been trumped by the First Amendment based on the Supreme Court’s evolving constitutional interpretations. (Of course, this could always change back if the Court changed its mind, but that seems pretty doubtful at this point). I would imagine that going after porn studios/actors on a prostitution theory rather than an obscenity theory would lead to the same result: the First Amendment would trump laws against prostitution in this context.

 

All this raises an interesting question: can those advocating decriminalization of sex work look to the history of how pornography was legalized as a model? Certainly, there is an active industry group in California that presumably does lobbying and funds litigation on questions related to pornography (like the recent initiative they had). https://www.freespeechcoalition.com I know there are some litigation efforts around the broader sex work question, but my impression is that they are not as well funded. If all the sex workers and clients could get together and get organized, I think they could make a strong case. Having laws against pornography be unconstitutional and laws against prostitution by consenting adults in the privacy of their own homes be constitutional doesn’t make a lot of sense to me.

 

I agree that a First Amendment freedom of expression argument coupled with a right of privacy argument, even though the right of privacy is based on questionably reasoned cases like Roe and Griswold, and an equal protection argument (of sorts) seems like the best means of attack on prostitution laws.

 

The biggest impediments are the moral issue, the feminist aspect of the trafficking argument, and the argument that state legislators should be making policy, not courts. As it should, the Court's jurisprudence changes with prevailing philosophies about the function of government even though no one is bold or honest enough to say so. (That's how we got constitutional doctrine as dumb as the penumbra of the Ninth Amendment or whatever nonsense it was that Justice Douglas used to justify a constitutional right to privacy.) As for feminism and trafficking, maybe the best answer is to argue that criminalizing paid sex is overbroad, that all that is necessary are laws against trafficking and paid sex with minors.

 

As for courts vs. legislatures: as much as it may pain us to say it, because with judicial life tenure federal courts are fundamentally anti-democratic and elitist despite being the product of presidential nominations and Senate confirmation, in recent memory the courts, not the legislatures, have been our moral beacons and authority. They have often saved us from ourselves.

 

Without going back and rereading what I wrote, the First Amendment protects filming and broadcasting animal cruelty. It does not protect animal cruelty from prosecution. However, it is probably easier to determine who profits from animal cruelty by filming it (assuming the filming is not meant to prompt action against animal cruelty) than it is to determine who is actually responsible for it.

[+ pitman]

I think porn is now so entrenched in our culture across all political persuasions that there would be hell to pay for anyone who tried to get rid of it. I believe there was a study that showed that the highest rate of consumption of online porn was in Utah! I expected the condoms in porn initiative in CA to pass easily and was pleasantly surprised when it failed . Porn is here to stay regardless of the legal theories espoused by some.

[Michael Wayne]

As the OP of this thread I must say a very valuable discussion. I think kevin Slaters' visual says it all!!! Additionaly, I (as an escort) am a performer too. I strip...I dance...I model.... I act (because I am NOT attracted to 90 percent of the clients) so I am acting. I play a role... ROLEPLAY! I get in Character. Magic Mikey is not me but he is a role I play and a character I have created. Michael Wayne is the real me. So I don't buy the legal distinctions some of yall have pointed out....... I feel DHS under a new administration is coming after not only male escorts but male porn stars and gay porn performers in particular so be warned. Spending half my time in DC is very educational but NOT in a good way. ps......yes I am paid for my time but my TIME is spent with a client performing sex acts. No "colleague'' would disagree with that. Again... Rentboys' defense was that the guys are paid for their time...not sex and look where that led. I noticed that no one seems willing to comment on RENTBOY- the big elephant in the room! Mikey

[+ Eric Hassan]

I suspect that the performance aspect of porn makes the legal difference. The actors are paid to have sex, but as a performance (Is it art? Sometimes!). They are not paid to provide sexual gratification to the audience (directly). And the fact that the audience is not physically present means that they are technically creating images, not providing orgasms, which are a side effect but not necessary to watch porn. Few would visit sex workers if they weren't reasonably certain of getting off. The distinction is probably at that point- around what is actually being created. By the same token, massage is perfectly legal, as long as it doesn't include the genitals. A stranger analogy would be a live sex show. These are rare because they are tightly regulated- strippers in most places can't even show their cocks. If it all seems weird and convoluted, the reason is that outlawing willing prostitution is irrational. It is not possible to draw a rational line around an irrational distinction. It's OK to sexually service the eye, but not the rest of the body...

 

Aren't the fundamental distinctions that 1) performance for some medium (call it artistic if you like) which is a First Amendment protected act of expression, and, 2) the person paying for the sexual act (i.e., a producer) is not the beneficiary of the act itself?

 

I quoted these posts as I think they are pointing at the clear distinction. Porn performs are hired to have sex - not solely for the sake of having sex, but for the producer/director to be able to make a product - a movie or scene or picture set - that they can provide to others. All the performers are paid, legal regulations are followed, etc - the pornography industry is about being providing entertainment that is not actual sex but a documentary of actual sex. Prostitutes are hired to have sex solely for the purpose of having sex. There's typically no product beyond (hopefully) a good time.

 

None of this is to suggest that there's any logic to the way pornography and prostitution are viewed legally or examined morally.

 

Some porn studios, e.g. Treasure Island, claim that they talk to potential performers about what their fantasies are and what turns them on most. They then try to make it happen and record it. So if you buy that, their scenes are documentaries of what men do together. The men are not directed as to what to do, and they are not acting; they just do it and TI records it.

 

I've worked for TIM and I can verify they do indeed talk to performers about what our fantasies are and see what they can do to make them happen. I remember having a long conversation about my forearm fetish with them when I first went in to meet them. Unfortunately, forearm porn isn't really a thing, so I have to save that for my site, but I digress ... when you film for TIM, there is very little direction. Generally, there's a little chat at the beginning to get you in the mindset and then they just let you go. For example, I filmed a scene where we were told who the tops were, who the bottoms were and the director said "So go fuck, do whatever feels good - the cameras will find you. If you're doing something and there isn't a camera around, call it to our attention and someone will be over." That was about it.

[+ pitman]

Back to CA Prop 60 (Condoms in porn). The county map of returns shows it only passed in 4 SoCal counties, including LA. Counties voting NO included the most liberal and most conservative ones. Strange coalition.

 

http://vote.sos.ca.gov/returns/maps/ballot-measures/prop/60/

[LivingnLA]

Since I've seen a few posts that talk about porn actors being paid to have sex. I feel compelled to respond. Legally speaking, porn actors are NOT paid to perform sex. That is prostitution, which is illegal. Porn actors are paid to act. I know those of you in the industry may think it's a legal smoke screen, but that is the legal foundation upon which the industry is allowed to operate. Yes, plenty of crazies in DC and elsewhere are attacking porn, male prostitution, and more, but for now, that's the law.

[+ quoththeraven]

Another reason porn isn't prostitution is because states like California have laws that specifically exempt sexual conduct engaged in as part of a performance from the definition of prostitution.

 

“Commit prostitution” means to engage in sexual conduct for money or other consideration, but does not include sexual conduct engaged in as a part of any stage performance, play, or other entertainment open to the public. CA Penal Code Section 653.20.

 

http://statelaws.findlaw.com/california-law/california-prostitution-laws.html

[+ honcho]

Hmmmmmmm, I do have some strong exhibitionist tendencies...

 

I'll have to look up whether there are zoning regulations prohibiting theatrical performances given in my apartment building . . . .

 

“Commit prostitution” means to engage in sexual conduct for money or other consideration, but does not include sexual conduct engaged in as a part of any stage performance, play, or other entertainment open to the public.

[+ Eric Hassan]

Hmmmmmmm, I do have some strong exhibitionist tendencies...

 

I'll have to look up whether there are zoning regulations prohibiting theatrical performances given in my apartment building . . . .

 

You might want to google "public indecency" while you're at it!

 

And then let us know where you live. And serve dinner. I love dinner and a show