Prostitutes And Porn: 1st Amend. Protects Porn But Not Prostitutes? Absurd CA Supreme Court

STEVELACKNER.COM ^ | November 24, 2011 | Steven W. Lackner

[stevelackner]

The Atlantic's socially liberal Andrew Sullivan asked in March 2008 two very interesting questions: "1. Why is it illegal for me to pay a prostitute for sex, but it’s NOT illegal for a film director to pay two people to have sex in front of a camera and then make money for his product in the form of a DVD or an online download? 2. As a corollary: Why are a prostitute and her john held in such contempt by the media and the public, but Jenna Jameson and Ron Jeremy are treated as rock stars on both cable and network television? Are they not prostitutes? They were, in actuality, paid for sex. No?" The questions clearly answer themselves. The obvious answer to these questions is that Sullivan had pounced upon a legal contradiction that makes absolutely no sense. As a matter of consistency in the law alone, either both should be illegal or both should be legal. I recently read the 1988 California Supreme Court opinion of People v. Freeman. It is an interesting case in that it dealt with a law against prostitution being used by the government to prosecute a pornographer who paid others to engage in ultimate sex acts such as sodomy and more. The pornographer was convicted for violating State statutes criminalizing prostitution. The Court had to accept that such a pornographer is no different than prostitution, or else explain the difference. In other words, the sole ruling of the Court was dedicated to answering precisely the sort of thoughtful questions posed by Andrew Sullivan and should have any legal theorist scratching their head.

If you expected an answer from this high court that was on par in profundity with the questions posed, you will be sorely disappointed. My first reaction to People v. Freeman is that the First Amendment "obscenity" doctrines created by the judiciary and United States Supreme Court are completely nonsensical (see http://www.stevelackner.com/2011/05/right-constitutional-approach-to-first.html for an explanation of why pornography and sexually explicit material should not be considered protected First Amendment speech in the first place). The linchpin of the entire case in People v. Freeman is faulty, the reasoning laying on shaky ground at the outset. The Court states that the “film was not determined to be obscene and for purposes of this review must be deemed to be not obscene. Thus the prosecution of defendant under the pandering statute must be viewed as a somewhat transparent attempt at an ‘end run’ around the First Amendment and the state obscenity laws. Landmark decisions of this court and the United States Supreme Court compel us to reject such an effort.” All this proves is that landmark decisions of the California and United States Supreme Court have been foolish and have themselves made a mockery of the First Amendment. No end running should be needed, the prosecutor should be able to run head on without First Amendment worry. The idea that as a matter of law decided by a few judges this is not an obscene film, despite the fact that the jury in the case felt it was worthy of prosecution under a prostitution statute, is an absurdity. I take very serious issue with the line of reasoning of this Court that states “since the acts involved here have not been adjudged obscene, they are within the protection of the First Amendment.” They should indeed be considered obscene as judged by those who prosecuted and convicted the pornographer, and they should not therefore be within the protection of the First Amendment. This faulty reasoning is so pervasive in this case that it makes the Court completely unable to accept or even respond to the government’s reasonable constitutional arguments.

The Court said that the State of California argued it was prosecuting criminal “conduct, not speech.” The First Amendment only protects against government "abridging the freedom of speech," and the Supreme Court has rightly long recognized that there is an obvious difference between Constitutionally protected speech and unprotected conduct. In response to this argument, once again the California Supreme Court mindlessly repeats that the actions of the pornographer cannot be considered within the constitutional power of the government to criminalize to begin with because his product is not “obscene.” In the mind of the Court, it is sufficient to rule simply that the pornographer's activities are not within the power of government because the film is nonobscene, and therefore it is not conduct that the government can regulate. But that line of reasoning is a restatement of the absurd "obscenity" rule as seen in case law, not an actual response to the fact that what is being targeted is clearly conduct. Anyone watching the film would realize right away that conduct is taking place, not speech. Otherwise, no one would watch the film and the pornographer would not profit from it. In the case, a pornographer was paying individuals to engage in acts of intercourse and sodomy. If sodomy is not "conduct," the word "conduct" has lost all meaning. Even if one were to accept that a film depicting sodomy is not obscene, that does not magically transform what is taking place on screen into any sort of "speech." Ultimate sex acts performed in front of a camera is undoubtedly conduct that happens to be performed in front of a camera.

Because of the judiciary's wrongheaded obscenity precedents, the government was forced to try to come up with alternative reasons for the prosecution that it should not have had to. The Court explained the government justifications for the conviction were “the prevention of profiteering from prostitution, and second is a public health purpose.” Again, repetition of “this is not obscene” is all the Court needed to declare in response. The Court arrogantly declared that “punishment of a motion picture producer for the making of a nonobscene film, however, has little if anything to do with the purpose of combating prostitution.” This is utter madness. If combating prostitution is defined as targeting for criminal prosecution those who pay for sex, then it of course has everything to do with combating prostitution. There is clearly profiteering from paying for sex acts to take place. Pray tell, if the client of an actual prostitute were to demand that all services be performed in front of a camera, would it now transform into a “nonobscene” “non-conduct” First Amendment right? The fact that it is being filmed would of course no longer transform this from an act of prostitution into an act of First Amendment protected speech.

The Supreme Court of California then further writes that these government interests “not only directly involve the suppression of free expression but are, in the context of a pandering prosecution for the making of a nonobscene motion picture, not credible.” Does that really in any way even attempt to respond to the public health justification? Not even slightly. The absurdity of legal precedents concerning obscenity is on full display in this case. It makes the California Supreme Court not even have to respond to basic points being made by the side from which it has chosen to ignore. All that needs to be done is continuously parroting the line in response to whatever the government says that is “this is not obscene and therefore First Amendment protected speech” no matter the argument made.

This Court seems to assume that a commercial pornographer is not a form of prostitution because a third party is paying others to have sex. If that is the case, such an assumption makes little sense. Prostitution itself would then be completely legal so long as a third party pays for the service. Yet I do not think any Court would extend this reasoning to an actual case of prostitution.

The Court then states that this case is incomparable to filming a murder or robbery because “considered aside from the payment of the acting fees, itself fully lawful otherwise, the sexual acts depicted in the motion picture here were completely lawful.” Are you kidding me? This is astounding. Could this exact line not be transferred to prostitution itself? Aside from the payment of service fees, itself fully lawful otherwise, the sexual acts of a prostitute are completely lawful. As George Carlin joked about prostitution itself, “One thing I don't understand is sex is legal and selling things is legal, but selling sex is illegal." It is flabbergasting that the California Supreme Court would attempt to make such an asinine distinction.

Whether paying for porn actors to perform sex acts on film should be a criminal act is an interesting policy question for the legislature and jury to decide upon, but the absolutely feeble attempts to distinguish it from prostitution coming from the California Supreme Court in and of itself demonstrates that it is not a constitutional or judicial one. This conviction should have been upheld. The perverse "obscenity" precedents that are so strongly relied upon for such results need also be abandoned to return some basic Constitutional sanity the First Amendment.

[PieterCasparzen]

America is sliding down the slippery slope we started on when morality laws were abolished.

[goldstategop]

In the old days, it was clear. Obscenity has never received First Amendment protection. Pornographic matter has always fallen within that orbit and that’s why government can zone X-rated theaters and adult bookstores. There is no constitutional protection to promote, sell or distribute obscene matter.

[gman992]

What if there is a political message in it?

[gman992]

And who determines what is pornographic...there’s tons of incest and “begeting” in the Bible, but try to ban that, and people go nuts...

[Lou Budvis]

The true descendants of the Puritans of the Northeast are the Liberals of the Northeast - same desire to control aspects of peoples’ lives. The gov’t has no business telling consenting adults with whom they can have sex.

[nathanbedford]

We have laws against immorality since the 10 Commandments, somehow they seem not to have had the intended effect. I do not understand how the repeal of these blue laws has much of an effect either.

As I dictate this I can look out the window and see the steeple of the church in our little Bavarian village. The second biggest building in the village is the rectory which stands to the left of the church. After the war when Gen. Patton swept through here the Americans occupied this village and the rectory served as the American officers' Poof -bordello.

Today the building has reverted to its higher calling of service.

Prostitution has been legal here in Germany and regulated and it seems to be far less problematical than it is in hypocritical, puritanical America.

We do not need more blue laws but fewer.

We do not need more laws about morality but more morality.

[Einigkeit_Recht_Freiheit]

This is a very interesting article written from a legal perspective and exposing a legal conundrum - or at least an apparent contradiction.

Although I do not wish to step into the debate regarding “obscenity” what seems to be left out of it, in my opinion, is the following (which I freely admit are generalizations):

The “normal” prostitute on the street is often a victim herself. She is not engaged in this “business” as a positive choice, but rather does so under the control either of a pimp or at least a drug addiction. The manner in which law enforcement and society deal with such problems is a primary issue. In some countries the decriminalization of this “job” at least allows for a dramatic reduction in its hazards. Keeping it illegal and punishing the women (and sometimes men) of course does little to alter the core causes of the act. Naturally there will be a minority who happily and voluntarily sell themselves in this manner, but they are a small percentage of the total.

In pornography there is no doubt that many of the women, at least, are not wholly sound in their psychology. However the danger factors are not present and the line between “acting” and “prostitution” may be clear, but nevertheless a porn star still has more in common with an actress than with a street prostitute. To name a few, this includes “normal” hours, safe working conditions, contractually obligated payments and, if she is “talented” opportunities for advancement.

Naturally, as prefaced, none of this truly addresses the legal issues mentioned in the article - which were valid open questions. However just as the statement “obscenity is hard to define but you know it when you see it” is somehow acceptable. The reality that porn and prostitution are different follows the same train of thought.

Lastly, porn is a very big business in CA. To make it illegal would be a huge economic hit. That's the last thing they need right now.

[stevelackner]

And who determines what is pornographic?

If you look at the article I linked within this one, it tries explaining some of the background of the “obscenity” framework (within an illustrative framework). It shows that the federal judiciary has essentially declared that the vast majority of pornography, aside for the real fringe of that product, is not “obscene” and therefore, according to the Supreme Court, is protected by the First Amendment. In other words, the decision has largely already been made by the federal judiciary. That’s the whole point. The correct Constitutional approach would be to leave the decision as to what is obscene to local legislatures and juries. Again, see http://www.stevelackner.com/2011/05/right-constitutional-approach-to-first.html for more that is more directly applicable to that question.

[HiTech RedNeck]

It’s not a fair comparison to put religious teachings held to be received from God on the level of a public morality law that can be passed or rescinded at the whim of men.

German prostitutes may be savvy about avoiding venereal disease, but there has yet to be a condom that can be placed over your heart. It’s better to have high standards but fail to meet them, than absurdly low ones however easy.

[stevelackner]

What you point out are policy differences as to why prostitution *should* be illegal while prostitution should not. But here the issue being dealt with is the First Amendment, obscenity precedent, and a CA Supreme Court ruling. There is no true legal distinction between the two, as my article argues, they essentially criminalize the very same conduct. The fact is that within the State of California just over twenty years ago a case dealt with someone that was convicted for pornography under a prostitution statute. The Court specifically was dealing with arguments based on the First Amendment of the Constitution. I think your points may fare well with a particular legislator, but they don’t quite translate well when dealing with a legal principle announced in something as fundamental as the Constitution’s right to freedom of speech.

[John.Galt2012]

So lets think hypothetically for a moment. Let’s say you are a “adult film maker” and you decide to start a business where you could search for new talent. Complete discretion is afforded along with anonymity to wannabe male stars. They would have a private screening room with a stand alone camera recording the screening. A female “professional actress” would be provided. The wannabe male star would have to pay several hundred dollars for the screening. Following the act, the female actress and wannabe male star would review the video together and if it didn’t pass muster, it could be destroyed right then and there. If it was pretty good they could then take it to the “Director” to see if they had a promising future in the adult film industry. Would that be legal or illegal? Studio and business licenses already granted of course.

[knarf]

If Woody comes alive, it’s sexual ... if it’s without my wife, it’s porn.

[monocle]

Two women go to a bar to pick up a man for sex. One does it just for the sex and the other does it for money. What’s the difference?

[The KG9 Kid]

Things like this are why polygamist Mormons tend to leave Utah and go to live in the bordering states, safest place typically being here in Nevada. I don't see them all the time here, but I've surely seen them.

Heck, prostitution is legal in most of Nevada. How can you tell some guy he can't get married to multiple wives where hookers have been legal since before the Civil War?

[exnavy]

The Lord your God says "Let there be not even a hint of sexual immorality".

Any sex outside of the marriage bed is?

That this discussion is even taking place shows us all why this once great nation is about to crash and burn.

[Berlin_Freeper]

The idea of a civilized Christian society is to be well separated from living like wild animals.

The goal is and always has been, to build societal structures that encourages people to make and maintain stable families.

Where do you find all the dope addicts and prostitute filth?

In the alleyways and on the edge of town, the dark cracks and fringe of society.

Where the Liberaltarians want to take us.

[Cronos]

bluntly they should be banned.

[wiggen]

The first one gets a gift,maybe a lavish dinner. Just to muddle it further.

[monocle]

Has a raped woman sinned in your eyes? She must have sinned in terms of your query because your question “Any”. Are you implying that we should follow the muslims and stone rape victims?