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Research Day: How Are Porn Movies Legal?

A friend of mine works in law enforcement. The other day she and I were discussing the recent election, and I mentioned that I voted for a libertarian for the second time ever. (The last time I voted for a libertarian was in 2000, and it was for the same person for the same position. Jocelyn Langlois says that, if elected as Lt. Governor of Washington, she would do one and only one thing: lobby our legislature to abolish the office of Lt. Governor and save the state $40K a year.) From here we segued into a discussion of libertarianism in general and I mentioned that I thought all acts between consenting adults should be legal, including prostitution. "I mean, porn movies are legal," I said, "and that's practically the same thing"

"Wait a minute," I continued, confused. "That's exactly the same thing. Are all porn movies made in Nevada or The Netherlands or something?"

"I think most of the are made in California," my friend said.

"How does that work?" said I. "I can't legally pay someone to have sex with me, but I can pay someone to have sex with someone else? And film it?"

"You can legally pay someone to have sex with you if you film it," my friend added. "Because, in that instance, you're not paying them for the sex, you're paying them for 'acting.'"

"Get out."

"Totally true," she said. "We even have a prostitute here in Seattle that we can't prosecute, because whenever we bring her in she steadfastly insists that men don't pay her for sex, they pay her for her time."

Thinking that there must be more to it than that, I did a little research. What I found is that that there is no shortage of loopholes to exploit to avoid getting nailed (so to speak) for prostitution. In general, it's the solicitation that's criminalized, not the act itself, which means that exchanging sex for money = legal, while proposing to exchange sex for money = busted. (Although it's probably more accurate to say that the exchange of sex for money isn't so much "legal" as it is largely unprocecutable -- unless the client says "I am now going to compensate you for the carnal acts we are currently committing" and hands over and wad of cash right in the middle of foolin' around, proving that the sex and the payment are irrefutably part of the same transaction is very tough.) So a creative pimp, prostitute, or john could concoct all sorts of wacky scenarios to evade arrest, like, "what if I started a bar where some of the drinks on the menu cost $200, but I let it be known that, historically, everyone person who has every ordered one has later had sex with the waitress who brought it to him?"

So one hypothesis floating around on the Internet is that porn movies are not legal, per se, and the whole industry is just one of these wacky scenario writ large. Because the participants in the sex acts receive money from the film's production company (rather than one of them giving it to another), and because at no point is any actor explicitly asked to engage in (just) sex in return for payment, they do an end-run around so-called "pander laws."

But as this FAQ make clear, there's usually a little more to it than that -- namely, the First Amendment. And there's a reason why California is the center of the porn movie universe.

In 1988, a California D.A. decided to call the bluff of a pornographer named Freeman, and rang him up on charges of "procurement of persons for the purpose of prostitution." After Freeman was found guilty in both superior court and on appeal, the decision was reversed by the state's Supreme Court. They cited two main reasons for their findings. First, the definition of "pandering" in California criminalizes sex-for-money exchanges "for the purpose of sexual arousal or gratification of the customer or of the prostitute;" but actors in a porn movie aren't in it for fun, they're just a bunch of working, uh, stiffs.

[Honestly, I'm not trying to make all these innuendos. But every phrase sounds dirty when discussing porn -- there's just no way around it. I've already written and deleted the phrase "tit-for-tat" twice.]

Secondly, the court ruled that the movies were entitled to First Amendment protection, so long as they were not obscene. Since something can only be deemed officially "obscene" if "taken as a whole, [it] lacks serious literary, artistic, political, or scientific value" -- and since even porn movies meet this incredibly low standard -- Freeman was adjudged to be in the clear. When the US Supreme Court declined to review the case (thereby letting the lower court's decision stand), California became the only state to have such a precedent on the books, and soon became a Mecca for the porn industry.

The curious thing about People v. Freeman, to my mind, is that it didn't actually legalize porn movies, it just declined to declare them illegal. And it didn't really delineate the distinction between porn and prostitution, either. After all, the First Amendment protections apply to the making of the film, but not to the original solicitation of sex for money. Also, the implication seems to be that if California just removed the phrase "sexual arousal or gratification of the customer" from California's pandering law, porn films would become verboten.

So here we have an entire industry operating in an enormous legal gray area, with neither side really wanting to press the courts for clarification as to whether the practice is legal or not. It doesn't make much sense to me. But what do I know? I don't even understand why we have a Lt. Governor.

Note: All the links in this piece lead to work-safe webpages, although you may not want some of the URLs in your browser's history.
Posted on November 18, 2004 to Research Day





Comments

also summarized by Mr. Wiggles

Posted by: z on November 19, 2004 4:56 PM

One of the unfortunate side effects of the "don't ask don't tell" quasilegal state of porn is that the industry is an unregulated sweatshop (har). The kind of basic everyday legal protections that workers in other fields enjoy are absent. This is because no legislator could stand being the one to put forth a law that protects or even acknowledges this industry.

Posted by: ignatz on November 19, 2004 5:11 PM

So, like, if I bring a video camera with me every time I pick up a prostitute I can say I'm hiring her for a porn movie and it's totally legal? Cool.

Now all I need is a video camera....and a desire to sleep with skanky whores.

Posted by: Duane on November 19, 2004 9:17 PM

Owch with the prostitute-hating, Duane. Sex workers do exactly that: work. They offer a service. If you don't like it, that's cool, but try and keep the insults to a minimum.

Posted by: Kahvi on November 19, 2004 9:45 PM

> try and keep the insults to a minimum.

Unless you're into that sort of thing.

Posted by: Anonymous on November 19, 2004 10:33 PM

bill hicks, while talking about pornography, made an excellent call on the legal definition of 'obscene'.. i can't remember it precisely but it went something like:

"...lacks serious literary, artistic, political, or scientific merit.. hm. sounds like all of the advertising industry to me."

Posted by: bob on November 19, 2004 10:46 PM

In Australia, (or most of it, I think Queensland is different, but then they always have been), prostitution is legal, the government controls a licencing system which enables them to check and control health issues, (such as condom use, spread of STDs and HIV, drug use, abuse of underage or illegal-immigrant workers etc) abd prostitutes, or sex-workers, do have a union. This means that most brothels are well-run places that are safe to work. They even hold "open days" for locals to have a look inside and meet the workers! The only people who are still falling through the cracks then are the girls/boys who have drug habits and whom most brothels will no longer employ. They tend to then resort to illegal street work and end up with the worst clients. Some areas are trying to set up safe-working zones with CTV so that they can monitor clients of these workers for the safety of the workers, not for prosecution of the workers.

Posted by: faith on November 20, 2004 2:48 AM

"what if I started a bar where some of the drinks on the menu cost $200"

Not a million miles away from how it works (or, at least, once worked) in London. See the World Sex Guide (a .org site) passim, though the overriding conclusion seems to be that UK-to-Europe transport is now so cheap and easy that the most convenient thing to do is just have a short jaunt to somewhere where it's explicitly legal.

Posted by: Chris M. Dickson on November 20, 2004 4:18 AM

Weird thing about Australia: prostitution is legal, but porn is not (in many states), and all movies (non-porn) must go through a censor board. Even the Internet is regulated for porn.

The difference between porn and prostitution, I think, is the product you are getting. In porn, the product is a video (or photo). In prostitution, it is sex. Bigg difference.

Posted by: Gopi on November 20, 2004 9:26 AM

I have learned a ton! Thank you.....
I wonder if grad school is still in the future or if I should change directions?

Posted by: Jasper on November 20, 2004 9:42 AM

Matthew,
I can't believe that I am responding to this post but here goes. Your grandfather and I had a similar discussion about ten years ago. I maintained that all of us who work for a wage are doing no different than a prostitute: that is, we are exchanging the use of part of our bodies for money. Whether it is the furniture mover or the garbage collector who is "renting out his muscles" or the engineer or doctor who is "renting out his brain power and ability with his hands" the fact of the matter is that they are all receiving compensation for the use of their bodies. Now having said that, the topic is not that simple but I believe this premise is the starting point for a more honest discussion of prostitution. (Such discussions might include work regulations, workwomans comp, unemployment insurance, unionization, etc) That and the realization that if the "whore" is skanky so too is the john.

P.S. Just for the record, I am probably one of the worlds biggest prudes, but this is how I see it.

Posted by: Mom on November 20, 2004 10:56 AM

And this is why, a couple years back, some friends of mine thought that if they were ever going to be pimps (you know, like, it just happened to them...I think this was during the dot.bomb fallout), they'd just set up a shop in an appropriate location and put a sign up front that said, "Make Your Own Porn Movies!", charge whatever the going rate is (I have no idea!) and hand their customers the videotape on the way out.

Posted by: Andrew on November 20, 2004 11:57 AM

And thay say my country has wierd law constructions! (Yes, I am Dutch and no, I never did any drugs and never even seen a prostitute. There are enough whores in the clubs.)

I personally think that porn, sex-for-sale and other jobs in the same catagory shouldn't be prohibited. If someone wants to have sex or see it, it's their right. Even those funky "big woman crush invertebrae" flicks iwch creeps me out. Their choice.

Posted by: Stefan on November 20, 2004 12:05 PM

One more thing: some people want to keep the porn industry unregulated.

Right now, there is testing for HIV, and if you're HIV+, you can't work.

If the industry is regulated, they can't do that any more, because discrimination by HIV-status is illegal in California.

Posted by: Gopi on November 20, 2004 4:52 PM

wow. your mom is rad.

if my mom read my blog, the word "heathen" would doubtless be bandied about with abandon thanksgiving eve.

Posted by: sweetney on November 20, 2004 6:49 PM

Yea, your mom rocks! I can't think of the last time my mom used the word skanky.

In all discussions related to porn or prostitution, I find myself with conflicting feelings. On one hand, it's a service like any other, we're all adults, there shouldn't be any restrictions, etc. On the other hand, women allowing themselves to be used for sexual purposes, even if they are getting paid, are just reinforcing the impression that women are useful only as sexual objects. It's a weird 2nd-vs.-3rd-wave feminism discussion going on in my own head, and now I have a headache. Thanks Matt!

Posted by: spygeek on November 20, 2004 10:30 PM

if I looking for frog

him name is hopkin green frog

I lost my frog
29-3228

Love,
Terry

P.S. I'll find my frog

Who took my frog
Who found my frog

2012 15th AVE. S

Posted by: Terry on November 21, 2004 4:11 AM

I was directed here by a mutual reader...Interesting post.
I will add that one of the other reasons porn movie-makers are rarely prosecuted in California is: it would put the "mainstream" movie industry in an awkward position. Think about it - there are a lot of pretty frisky scenes in some non-porn movies. Those actors didn't really have sex, but they got paid to simulate sex, and if you start prosecuting people for depicting what looks like sexual activity, well, where do you stop? Better not to start down that path, says the rather influential movie-industry lobby.

Posted by: Mistress Matisse on November 21, 2004 3:20 PM

Ssshhhhhh...

Posted by: Chris on November 22, 2004 11:04 AM

If porn wasn't legal, then big hotel chains like Marriot (Marriot, think about that! Who owns Marriot?) wouldn't be able to make money off of business travelers watching it in the hotel.

Posted by: Lost Poke on November 22, 2004 1:38 PM

Another cool thing for the California legislature--well, for any legislative body, but we're talking about CA in this case--is that as long as they allow pornography its legal grey area, the tax money it generates keeps coming in. Porn is a multibillion-dollar-a-year industry, after all. Even if only some of that money is handled on the up-and-up, that's still a nice pile of cash.

(Is a legal grey area like the blue area of the moon?)

Posted by: Andrew Willett on November 22, 2004 5:01 PM

A very interesting post. I don't know much about the laws on prostitution in the UK, but I suspect they aim more at the soliciting of services as well.

As for porn films, I imagine it would be fairly easy to say they are only acting, not having real sex, no matter what you see. And let's not forget, this is a huge industry, which supplies a lot of tax money.

Posted by: Lee on November 23, 2004 1:31 AM

Interesting post & cool blog! And this is a boring way to introduce myself, but may end up being relevant if this is what is holding back insiders from supporting legalization/regulation.

Gopi - re: HIV status
Last I knew, if it were a regulated industry and it was determined that being HIV- was essential to the job, and everyone hired as an actor in porn production had to submit to the same HIV test, then that is not discrimination and would be upheld in court.

(ADA Act - excerpt)
Part of the discrimination definition is:
"using qualification standards, employment tests or other selection
criteria that screen out or tend to screen out an individual with a
disability or a class of individuals with disabilities unless the
standard, test or other selection criteria, as used by the covered
entity, is shown to be job-related for the position in question and is
consistent with business necessity"

Posted by: Lilly on November 29, 2004 7:30 AM