husband x and I have puzzled over this legal idiocy for many years. apparently something hinges on whether the filming has the express purpose of arousing the cameraman, but this is really a non-starter. if the director of a big-budget porno is masturbating, do all the actors turn into prostitutes briefly, and then turn back when he's done? if I have a sexual fetish such that I only sexually enjoy the filmed product, but am unmoved by the real thing, am I off the hook if I hire two prostitutes to have sex with each other as long as I'm making a video? if I run a contest like buck angel's, and it costs $250 to enter and you're guaranteed to win, and the winners get to have sex with me after giving me the $, and we make a video which they then retain, is that not prostitution for some reason? if that's prostitution, would it cease to be so if the film were widely distributed? but then, could poor sales retroactively turn a porn movie into solicitation + filming for private gratification? "I thought it would sell better, your honor!" some SoCal DA did apparently try to prosecute some valley porn makers on these grounds and failed, but I can't imagine why. if prostitution is illegal, magic video dust can't turn it legal.
It's not a legal question. The issue is what people can live with and what they can't. Most people can live without whores, or at least without legal brothels. They can't live without porn.
This is a loophole I first thought of back in high school, but my 15-year-old self couldn't find a way to capitalize on it. Though I will say, there are a number of low-budget porn producers (as chronicled in that HBO series about porn) who also star in their own movies.
The distinction does seem to be a fine one.
-gg-d is Captain Stabbin'!
Alameida,
Arousing the cameraman? Can't a get around that one by hiring the cameraman too, and hiring someone who is not into whatever we are doing on film? And then having sex with her too? While one of the other stars is filming?
Found it! California v. Freeman.
You will note that most American commercial pornography is produced in California.
This link has a fine (pro-porno) description of the legal reasoning. Quick summary: (a) it's not "lewd" if both people are pros, (b) even if somebody on set was getting off (lewdly), the First Amendment protects non-obscene depiction of acts which are not inherently illegal. (NOTE: slippery defininitions of "obscene" and "inherently illegal".)
If prostitution were to made legal, how many of you out there would quit your current day jobs to become an employee of the world's oldest profession? (With allowances for those of you out there who are doing it, legality be damned or not.)
There should be a show called Reality Whorehouse. I'd watch it.
The reason for this loophole is the First Amendment.
8 -- On the hetero male side, beauty standards would be quite high. No pigs in fancy shoes here. After all, if a woman wants to have one-off sex with an unattractive loser, there are surely sufficient opportunities to be had without paying.
On the TV show, though, I think you're really onto something. What would make the show interesting wouldn't be close-ups of the actual sex, but of the interactions of the people. With good camera work, you could probably produce a show that could be put on US cable today -- all you need is a venue for filming, and I'm thinking small cruise ship the requisite number of miles offshore.
the first amendment protects large-scale commercial interests but not small-scale ones?
11: Yeah. Also, alternatively, prostitution gives some money to women and some sex to men, while porn gives some money to men and women and a lot of money to other men. And we all know that men can't be restricted from making money, those poor wannabe breadwinning souls.
8: Subscribe to HBO and check out Cathouse: The Series, a show about workers at the Moonlite Bunny Ranch in Nevada which can be surprisingly explicit. (How do they get those releases?) The original documentary is available on DVD.
14: That's still fairly absurd, though, isn't it? Either paying people to have sex is a crime or it isn't. Can you think of any other crime which stops being a crime when you put a camera in front of it?
The same logic doesn't apply to child molestation, which is still illegal if it's done "only" for the purposes of creating pornography. Obviously, this is a necessary law to have -- but I can think of no coherent legal principle that would both disallow child pornography, allow adult pornography, and yet leave non-filmed prostitution illegal.
Either paying people to have sex is a crime or it isn't. Can you think of any other crime which stops being a crime when you put a camera in front of it?
I'm not sure what prevents us from requiring whatever we want in a statute. Is it stupid? Yeah, but it represents a compromise, and I'd rather a stupid compromise than a stupid clean rule.
Actually, this is what I'm not getting: I can think of no coherent legal principle.... Why is "public policy" not a sufficient answer? If you want to step behind that response, you could gin something up about balancing the state's interests in the morality of its citizens, or the health of its citizens. or whatever, which have to balanced against free speech interests.
no coherent legal principle
The statutory state-law argument in Freeman on the meaning of "lewd" works nicely, doesn't it? Lewd acts are for the purpose of sexual arousal of customer or prostitute, whereas porn is for the arousal of third parties and the arousal of participants is only incidental. Child porn is illegal for wholly separate reasons.
I can't really see how to make the First Amendment argument work, though, except as a sort of balancing test, such as: there are free speech interests implicated here, you have to weigh the nature of the underlying offense against the nature of the speech at issue. So porn isn't so bad, and people like it, and who gives a shit about prostitution laws? But murdering hobos is very bad indeed, and no-one wants to watch Ultimate Hobo Murders 2, so the First Amendment doesn't protect hobo murdering even with a camera.
I'll reiterate what I said earlier: It's the First Amendment. The problem is that the prohibitions against prostitution are codified in state law. What legislator in their right mind is ever going to propose changing those laws? That's right, no one. Thus, they stand (frankly, I think otherwise prostitution might be legal by now; it surprises me that it isn't). Porn, on the other hand, has been found to be protected by courts, which have the freedom to say and do things that legislators might not. The First Amendment in its federal-ness has allow federal courts to reach the topic of pornography, while prostitution remains the province of state legislatures.
That's just an explanation, I guess, not a coherent legal principle. But frankly, First Amendment law, as a body, is pretty incoherent itself.
Is it stupid? Yeah, but it represents a compromise, and I'd rather a stupid compromise than a stupid clean rule.
Well, sure, I'd rather have them legalize pornography while banning prostitution than see them ban both, but the fairly silly legal construction of "it doesn't count as prostitution if you put it on tape" just demonstrates how far they had to stretch to maintain an absurd ban on prostitution to begin with.
In line with SCMT's 18, maybe the public policy is that if people need to get off somehow, better five hundred people masturbate to one woman having sex, than pay five hundred individual women to have sex with them?
16: Child pornography is "inherently illegal", every aspect of its creation and distribution is against the law, including and especially engaging in sex acts with children. Having sex is not illegal. Filming people having sex is not illegal. Distributing (non-obscene) films of people having sex is not illegal. So the only question is the transfer of money from one party to another.
The legal principle is that, while this illegal in most contexts, if the transfer of money is intrinsic to a "speech act" it is permissible. It's a little bit knotty, but hardly incoherent. It is also, BTW, California case law which is non-binding on the other 49 states, many if not most of which would probably not go for this. (On the other hand, while the majority of commercial porn originates in SoCal, there are pornographic materials being created in every state of the Union---it is so rare for this to be prosecuted that it could be considered de facto legal.)
16: I'm having trouble thinking of a non-tortured example where the exchange of money is the only relevant criminal act.
I am the producer of Ultimate Hobo Murders 2. And you would be surprised what Nevada state law is like.
I meant...
15: I'm having trouble thinking of a non-tortured example where the exchange of money is the only relevant criminal act.
23: I think the more relevant point is that there's a clear demand for both pornography and prostitution, enough to sustain large, underground industries for both. As long as there's going to be porn and hookers (and drugs, while we're at it), we might as well legalize and regulate them instead of pretending we can stamp them out.
"intrinsic to a speech act" sounds a lot like a fancy law-talkin' way of saying "with a video camera in the room."
a non-tortured example where the exchange of money is the only relevant criminal act.
Bribery?
28: Bribery doesn't work: "Here, I want to pay you to take a bribe for me on camera, OK?"
Now, can I go down to 10th Ave with a hundred bucks and a camcorder and make the whole affair nice and legal? The answer is no, because doing so for my own personal pleasure makes it "lewd".
An interesting point here is that Freeman was open to this charge: he participated as an actor in his films. However, it seems that the prosecution stipulated that he did not do so for his own personal gratification, so the status of a producer/participant is not clear.
a non-tortured example where the exchange of money is the only relevant criminal act.
I'm missing it. Where's the other relevant criminal act, then?
"Although prostitution has existed in all ages, it was left to the nineteenth century to develop it into a gigantic social institution. The development of industry with vast masses of people in the competitive market, the growth and congestion of large cities, the insecurity of employment, has given prostitution an impetus never dreamed ov at any period in human history."
-Dr. Alfred Blaschko, in Prostitution in the Nineteenth Century quoted in "The Traffic In Women" by Emma Goldman
I'm going to come down on the side of the economic argument on this post. Free commercial speech is not only a great good in our legal system, but the structure of that system ensures that it will remain so. Pornographers have money for lawyers, as well as a mostly silent plurality of public opinion on their side. Prostitutes, and to a lesser extent, pimps, procurers, touts and madams, have less money, and less social capital. Should it surprise us then that pornographers are mostly allowed to go about their business (except in western Pennsylvania), while prostitutes are exploited, harrassed and shaken down?
You know, I used to think this blog had some redeeming social value, but now it's nothing but smut, smut, smut!
31: "ov" s/b "of", unless, unbeknownst to me, Dr. Blaschko was an early disciple of Genesis P. Orridge.
Re: bribery.
If I bribe Congressman X to license me to build a casino, both I and X have committed a crime (am I right about that? I'm not sure).
There'd be nothing wrong with me persuading X that licensing me for a casino is a good thing to do; it's only the exchange of money that makes it illegal.
If I secretly film the bribe, then release the movie and don't build the casino, then clearly I've done a good thing, exposed corruption, and there's no bribery on my end because I never accepted or was looking for a quid pro quo.
On the other hand, if I release the movie and build the casino anyway and get really rich, I have (unless I misunderstand the law of bribery, which I may) committed bribery: can I use the movie to shield myself from the penalties for bribery?
I concede that this doesn't satisfy the "non-tortured" requirement anymore.
Now, can I go down to 10th Ave with a hundred bucks and a camcorder and make the whole affair nice and legal? The answer is no, because doing so for my own personal pleasure makes it "lewd".
As I understand (what the link you posted says about) Freeman, yes, you can, if you plan to release the movie: Freeman says that even if you do fall under the definition of pandering, i.e. even if your acts are lewd, the First Amendment still saves you.
In the UK, there's no need for such a loophole.
Prostitution is legal in the UK. On the other hand, running a brothel, living off the earnings of a prostitute -- i.e. being a pimp -- soliciting, and kerb-crawling are all illegal.
If an individual makes a private arrangement with another individual to have sex with them for money -- an 'escort', for example -- then no crime has been committed.
30: I misread entirely what postalchris was saying in 26, I think.
I'm absolutely amazed that no one has ever thought of this stupefying loophole before.
to 31: aw, we know you like it like that, minneapolitan. come on over here and give us some sugar.
So the answer is, "Yeah, that's right; explicitly so in California, and de facto in most other places"?
33: I'll one up you here. The claim is that a performer in a pornographic movie is not engaging in prostitution because he/she is being paid to perform in a "speech act".
I want to make a movie about building a casino. Drat, there are no casinos being built anywhere near here. So I go and bribe a congressman to build a casino just so that I can film it being built (I don't even want the license for myself!). What just happened? Bribery or speech?
There does seem to be a balancing act, as in 19: public influence peddling has deleterious effects on society as a whole, whereas prostitution/pornography (very, very arguably) do not...
Back to the prostitute example, what if I declared my intent to upload my video of the prostitute on the Internet for free immediately after I finished making it? What if I ran a commercial website called prostitutevids.com? It does seem that having a commercial venture affords me more First Amendment protection (cf. 11, which I thought was a little silly when first I saw it), since it somehow immunizes me from "lewdness".
So to the perenial question "are bloggers journalists" we can add "are amateur smut peddlers pornographers"?
As silvano said in 21: First Amendment law is pretty slippery stuff.
40: And, yes, you are losing your mind.
Except Kentucky. They're very moral in Kentucky.
Besides, those people aren't being paid to have sex, they're being paid to act. Show biz. The silver screen, holy in all its forms in SoCal...
Hell, even Heidi Fleiss wouldn't have been busted if the silly woman hadn't started dealing drugs and engaging in tax evasion.
41: If you think First Amendment stuff is slippery, try the Commerce Clause. Almost anything can be rationalised by twisting that into some legalistic Klein bottle and filling it with gin.
What if I ran a commercial website called prostitutevids.com? It does seem that having a commercial venture affords me more First Amendment protection (cf. 11, which I thought was a little silly when first I saw it), since it somehow immunizes me from "lewdness".
Is it clear that you even need the website, or, if the website, then to upload your videos to the website? Why couldn't you be in the early stages of a planned entry into the pornography market? Why would you even need the camera--couldn't it all just be rehearsal? My suspicion is that prosecution happens because either (a) the evidence is overwhelming, (b) the prostitute is poor, or (c) the john is embarrassed.
Kind of unrelated: Is there a definition for "amateur" porn? Is it just that the women don't have implants?
46 -- Amateurs play for the love of the game.
46: There is no definition of amateur porn. There is a rough set of aesthetic norms which are frequently violated.
There is a distinction now made between "amateur" and "homemade".
Aside from issues of definition, "amateur" is probably the most misspelled word in the pornosphere.
Amateurs can have implants. More common than homemade material is "pro-am" or "gonzo" material shot verite-style with women who claim to be completely non-professional or at least inexperienced having sex with professional men.
I'd like to clarify that the "loophole" isn't quite as stark as stated by ogged. It's not quite right to just say "it's illegal to pay someone to have sex with you, but it's legal to pay someone to have sex with you if you tape it and try to sell the video". It's only legal to pay someone to have sex with you if you tape it and try to sell the video so long as it's understood and consented to from the outset by everyone involved that this is the plan. (As long as everyone agrees you're making a movie, not just bumping ugly.) It's not like you can just hire a prostitute and roll a video camera and be in the clear.
And the distinction here is not just that the prostitute has to consent to the distribution of the sex tape (as a matter of privacy), of course that's true. It's more than that: you can't just hire a prostitute who happens to say "sure I don't care if you film this and sell it, do whatever you want, I'm just here to fuck you, which is what I get paid to do." That's still prostitution, and you're still breaking the law. (And this is true even if she's not being so crystal clear about what's going on.
The basic point is that prostitution is illegal, but making movies is legal. The fact that many movies involve sex, and some movies involve lots of sex, makes any lines you want to try and draw here inevitably a little bit thin. But it's hardly absurd or incoherent, as has been suggested upthread.
It's not like you can just hire a prostitute and roll a video camera and be in the clear.
But, can you hire a prostitute after clearing it with her that you're making a movie, roll a video camera, and be in the clear? Your proviso doesn't seem to be much of a.
15:"Can you think of any other crime which stops being a crime when you put a camera in front of it?"
Sure. Boxing.
I can't believe this thread has gone so long without anyone questioning ogged's motives for asking this question. I mean, I know that he announced a resetting of the TiVo, but for all we know that was (1) a one-shot deal and (2) a lie into the bargain.
Now, if he had filmed himself getting it on and uploaded the video to unfogged, then we could be certain.
I couldn't decide, Ben, whether to title the post "An Idle Question" or "Business Plan."
Wait, I thought ogged was stuck at the London airport with that other Mexican. Surely they haven't the equipment to film a porno right now.
52- is your question just "is a prostitute allowed to appear in a porn film"? Because: of course.
I think you know what I meant, Brock.
The real question is, "Why don't people do this?" I assume it's because prostitution is not much policed, at least not at the income level at which people might want a way around the law.
53: Unfilmed boxing matches aren't against the law.
53: Boxing (to the extent that you conflate boxing with street fighting) is actually the *opposite* of prostitution: punching somebody in the face is illegal for private citizens (e.g., in a barroom) and legal in a "professional" setting, with or without cameras.
punching somebody in the face is illegal for private citizens
Porn from SoCal makes me homesick, because I recognize the outdoor locations.
Y'all knew about the weekly porn viewings at the Supreme Court, right? Back when the standard for porn was "I know it when I see it", the justices had to make that decision on a case-by-case basis.
63: Clarence Thomas curses his poor timing.
Justice Stewart was a man of the world:
In Casablanca, as a Navy lieutenant in World War II and watch officer for his ship, Stewart had seen his men bring back locally produced pornography. He knew the difference between that hardest of hard core and much of what came to the Court. He called it his 'Casablanca Test'."
(from 63)
Felix, you aren't, by any chance, the Felix who lived at Loth? From what I've heard, your senses of humor are alike.
You know, I used to think this blog had some redeeming social value, but now it's nothing but smut, smut, smut!
That is its redeeming social value, and proud of it too. Give us smut and nothing but!
apostropher, I had hoped putting professional in quotes would implicitly pull in Golden Gloves, Olympic boxing, &c. I suppose also two "amateurs" (i.e., non-sporting ruffians) could "consent" in the sense of mutually not pressing charges.
Anarch, I'm pretty sure the comment you quoted was a joke. This blog never had any redeeming social value.
66: Don't think so. If that's a reference I'm not catching it.
I googled Loth and learned that urbandictionary.com defines "Loth" as a "Very cool person who likes to rape people [as in] 'Damn, he's so cool i think we can call him a Loth.'"
I'm not sure what to make of that.
Google for "Posted by: Ted H." to see what I mean—if you think you can handle it.
Actually don't google. The googley-ahoohole, you know.
That wasn't what I meant. Loth was my hippy co-op in college. Now I know of two neato Felixes. Felices.
I am both disappointed and relieved not to be a very cool rapist.
No one needs to be that cool.
Also - I flushed M/eigs again. He is in fine form in today's comments.
Anarch, I'm pretty sure the comment you quoted was a joke. This blog never had any redeeming social value.
I'm sure of that myself but hey, any excuse to quote Tom Lehrer...
Oh.
Who's up for boggle?
A O R L S
Qu W S D M
T P D T O
R D E E A
E H A A W
The obvious difference is the ownership of women's bodies thing, come on, people. All the legal loopholes in the world are just rationalizations. If a woman fucks someone for money, that's wrong; if she fucks someone because she's an actor and that's what the director tells her to do, she's a slut but it's not actually *wrong*. If she fucks someone because she's forced to do so by a pimp, she's a victim, but only if the pimp literally beats her up and hopefully imprisons her. Otherwise she's a willing victim, i.e., it's wrong.
If you really got all those words out of 78, you're going to get an incredible score.
Yeah, I suck, I failed to check to see if we'd grown bored with the feminist nonsense before I wrote my comment.
Also, I refuse to play Boggle.
Boggle is OK but web boggle is a snare & a delusion.
All computer-based games are bad.=Beat me, please=I don't like pizza.
Beat me and I will kick your ass.
The rest of it is fine, though.
that Qu is useless. All I can get is "qua," and I expect Unfogged Boggle to be at least a 4-letter minimum. I see two six-letter words.
All computer-based games are bad.
British subject matter AND "computer-based games".
P.S. What's blogging, chopped liver?
Blogging is completely evil and bad. Like every other computer-based game (yes, goddamnit, that's a fine phrase, encompasing online games, video games, and shit like Tetris), it's fucking addictive as hell and an incredibly stupid waste of time. Not to mention completely warping your sense of reality.
So there, I say.
John Madden football on PS2 is *not* stupid. I'll grant you addictive as hell and waste of time, but definitely enjoyable. And, hey, video games do actually improve people's eye-hand coordination and their ability to process and synthesize information rapidly, so there's the rationalization that they're not completely useless. The key is "in moderation", which is easier said than done. But, when has this ever stopped people from engaging in activities that can be bad if taken to the extreme?