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.

[exnavy]

I implied nothing of the sort. You twist words as good as any liberal can.

[monocle]

I am not twisting words? You should have said “Any consensual sex... .

[PieterCasparzen]

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.

True descendants: I don't think you mean literal biological descendants, since there are tens of millions of them all over the country and their current religious beliefs mostly differ from their forefathers.

Perhaps you mean the true descendants in terms of what you call the "desire to control aspects of peoples' lives" which you attribute to Liberals of the Northeast. I see virtually no attempt at all by liberals of the northeast to control anything related to morality; in the northeast most anything goes. In fact, eastern Massachusetts and the Cape Code area, where the "Pilgrims" first landed, is a bastion of homosexuality that stands out like a sore thumb to even a traveller passing through.

In regards to the gov't having no business, etc., we perhaps have no common understanding of morality. I am a Christian in the Reformed tradition, which is what the "Puritans" were, which I hope does not make you rush to point the finger of "ha!" at me - at least too quickly !

Perhaps we can agree that there is a lot more in the Bible than just guidelines for conduct relating to sex.

In fact, there is much more to the Bible than I can quickly convey to you here, of course.

Any truly believing Reformed Christian will know that the Bible (the Word of God) specifically directs them to not force anyone to believe, repent or even improve their moral conduct. The Bible, in various verses, tells us that this is ultimately futile and actually meaningless in effecting the person's salvation. If I convince or force someone to refrain from sexual immorality - it does nothing to merit that person's salvation ! Little known fact, outside of those who really know their Bible. Without salvation, a person at their death is destined for eternal damnation; eternal separation from God. Therefore, when a true believer sees a person caught up in sin, their concern would be with the person's soul, and if anything they would simply testify of the Gospel (good news) to them.

Sex outside of marriage, historically, was recognized by society to cause what we call today "single mothers". For thousands of years, it was known as "the fatherless" or bastard children. Sex outside of marriage also causes the spread of disease, but of course, STD's were not understood until relatively recently. In most societies of the past, life would often be very hard on families where daughters became pregnant but had no husband. Hence, daughters were married to men and would leave their home and start their own family with their husband. This was pretty much par for the course for all of history until after WWII. If you wanted to have sex with your neighbor's daughter - you would have to marry her first, so you wouldn't start making your neighbor pay for your children.

Christianity was brought to Europe in the first millenium after the death of Christ - and European law is largely the source of American law. The arrival of Christianity in Europe formed a new basis of legitimacy for it's rulers as they converted, and, accordingly, their laws came to reflect a Christian moral foundation. The Bible recognizes the difference between civil government and the Church, and that both are God-ordained institutions. It says that the civil government is given "the power of the sword" over people - and that part of God's purpose for the civil government is to restrain evil acts against the innocent.

In the Bible, sex outside of marriage between a man and a woman is called fornication, and is prohibited. While this and all other sorts of debauchery happened - and certainly was hidden or ignored, especially by the upper classes - it was never officially condoned to the point of being promoted by the law in Europe or in America, any more than lying or stealing was. That is, until the 20th century.

The idea that "The gov’t has no business telling consenting adults with whom they can have sex" has no basis in law as a "Constitutional" viewpoint prior to about 1960. One would be hard pressed to accept this, however, if one only read Wikipedia or liberal websites. However, it is clear that it is not a founding principle of America if one reads primary documents, and there is nothing in the Constitution that prohibits the States from passing laws governing sexual acts. In fact, before 1962, every State had laws prohibiting immoral sexual acts which were held by the Supreme Court to be Constitutional for 215 years.

Sexual immorality laws were not specifically repealed, but, as part of a "standardization" process initiated by the legal profession, namely the American Law Institute, State criminal laws had bulk changes passed into law - and the sexual morality laws were often simply omitted. The ALI had drafted a Model Penal Code, finished in 1962, and this formed the basis for passage of various blocks of law by numerous States.

Modern revisionists sometimes wrongly claim that immorality laws were rarely or never prosecuted. To wit:

Morris County,New Jersey Court Records. December 22,1762. The King vs.JOHANNAH AYRES charged with fornication. She plead guilty. 1,5 fine and 30 stripes on her bare back on 27th day of December 1762.

Simple searches will turn up many case records of prosecution of immorality under the law.

Sodomy laws were upheld in 1986 Bowers v. Hardwick by the Supreme Court, and then, true to it's historical decade-or-two pattern, it reversed itself in 2003 Lawrence v. Texas which had the effect of invalidating all morality laws in the U.S.

Those Justices of the Supreme Court who were in the majority in Lawrence v. Texas can rest easy in this case despite their pathetic attempts at rationalizing their political interests. O'Connor's logical contortions to allow her to avoid advocating overturning the Bowers case, in which she was in the majority, and yet still be in the majority for Lawrence which, according to her four Lawrence cohorts, did indeed overturn Bowers (only lawyers can do this) reveal quite the logical gymnast. O'Connor can rest easy, however, because she based her case on equal protection, the liberal judge's catch-all. And the other four can rest easy also in their claim that Bower's assertion of sodomy being widely and historically comdemned is somehow refutable.

The majority opinion in the 2003 case stated "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual".

Well, what about the enormous number of illegitimate children born in America since 1960 ? The fatherless, all the children of single mothers ? Since the 1960's America has had it's "sexual revolution" going, removing impediments to anyone having sex any time they want with whomever they want. It's been very encouraging for men and women, young and old to feel no need to refrain from sex outside of marriage. But if this government-condoned casual sex produces millions of children, most of them living with single mothers who find it difficult financially to get along, to work and care for children at the same time and therefore need more government services, what then ? Does that not burden the government and the taxpayer ? Is that not a "legitimate state interest" - the cost of having millions of babies with struggling or absent parents ?

No worries, we can all "rest easy", the SCOTUS has wisely taken care of that. They took care of all those unwanted children in 1973 in the Roe v. Wade decision.

IMHO.

[exnavy]

That’s not what God’s word says.

[exnavy]

Sex is, a gift from the Lord. To be confined to the marriage bed. All other is sin.

[monocle]

"All other is sin."

Words have definite meanings. You are saying all sex outside of marriage is sinful and again your are not excluding nonconsensual sex such as rape and incest.

[muir_redwoods]

Regarding prostitution, one of the oldest civil liberties question is why is it illegal to sell something that is legal to give away? It is ironic that in a supposedly capitalist society, it is the money that makes the act illegal.

[mkjessup]

"German prostitutes may be savvy about avoiding venereal disease, but there has yet to be a condom that can be placed over your heart."

That my FRiend, is one of the most profound statements ever made in this forum.

Kudos to you.

[muir_redwoods]

Since any religion and, in fact, all religions are merely hypotheses, you are welcome to believe in one absolutely but you are not free to bind others to the rules or beliefs of a religion.

[PieterCasparzen]

We have laws against immorality since the 10 Commandments, somehow they seem not to have had the intended effect.

I don't know if you're Christian, but the Bible is the Word of God; everything in it has therefore had the exact effect that God has willed.

I do not understand how the repeal of these blue laws has much of an effect either.

Blue laws in the U.S. concern restrictions like closing businesses on the Lord's Day. Prostitution laws would be classified as morality laws. The effects of rapidly increasing mmorality in the U.S. have coincided with the elimination of laws governing morality starting in the 1960's. There is a big difference in the attitudes and actions of the population when immorality is illegal and forced underground and when it is legalized and allowed to increase and spread throughout the leadership of the nation.

After the war when Gen. Patton swept through here the Americans occupied this village and the rectory served as the American officers' Poof -bordello.

Nowhere does the Bible say that everyone who professes to be a Christian will not sin. In fact, the Bible teaches that every human is born into sin an unable to resist it without the help of the Holy Spirit. This is why a true believer be convicted of his own sin and gladly confess that he is a sinner, and though he may falter (even the Apostles faltered), he generally will experience what is called progressive sanctification in his Christian walk if indeed he is saved. Simply because certain GI's patronized a bordello in WWII, a whole nation or Church is not implicated as hypocrites.

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

Problems may or may not be visible, but certainly the wages of sin is death; physical death and spiritual death, eternal separation from God. America today is more like Sodom and Gomorrah than puritanical, as many professing Christians and congregations are heretical, let alone the vast number of unbelievers who reject God. As far as hypocrisy, the Bible in numerous verses - many are Jesus' own words - admonishes the believer to not be hypocritical. So if a Christian is hypocritical they alone are to blame, not America or anyone or anything else. We must remember that it is not hypocritical for a Christian to testify to the truth of Scripture, in fact, they are called to do just that. And Scripture clearly says in many places that sexual immorality is a sin. If I were to say that prostitution is not a sin I would be lying.

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

The Bible tells us that the civil government is a God-ordained institution intended to restrain evil. This serves God's purposes by protecting the innocent. Also, Godly leaders of Godly nations are directed to make and enforce laws to that effect. This is because rampant sin will multiply - since people are inherently born into sin and can not resist the temptation to sin without the Holy Spirit, which dwells within believers. If there are only few true believers in a nation, and sin is not restrained, it will snowball dramatically and cause great misery. This is evident in history in the rise and fall of nations. God controls all things, nations rise and fall according to his will and purposes. Sometimes evil nations prosper to serve his purposes (there are many cases of this in history, many of them in the Bible), eventually they are brought low. We do not know the mind of God and therefore to what we are predestined by him to, but it is ours to keep trying regardless. We actually have no other choice since we do not know the future, like a person on the Titanic or in a sports event for that matter, we simply keep trying.

IMHO.

[circlecity]

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

Isn't every criminal law statute on the books a "law about morality"?

[Einigkeit_Recht_Freiheit]

You are right of course and I thought that I wrote that I didn’t actually address the legal issue.

[Einigkeit_Recht_Freiheit]

Good analogy - well thought out.

To a certain extent this is not so terribly far from how the “escort services” work. No cameraman and no filming, and naturally the service advertised can be upgraded only when the girl and guy are together. These higher paid prostitutes I also generally believe are mostly voluntarily doing it.

But to be honest having seen red light districts in places where it both is legal (or at least tolerated and regulated) and controlled and places where it is underground I generally believe that the former is the least bad choice. Illegality of prostitution neither prevents it, nor does it reduce its availability. All it does is ensure the women, who may already be victims, are further victimized and ostracized.

Of course, this is not necessarily the point of the article. The point is a matter of current law. Your analogy is a perfect example of why some additional clarity might be called for.

[R. Scott]

Much like the question, “Have you ever paid for sex?”
A man takes a woman out for dinner, drinks and a movie. The tab is around $100 and he hopes to get “lucky” and have sex at the end of the date. It might be 3 or 4 dates before he succeeds, he spent several hundred dollars for sex.

[crghill]

Amen and please see my tagline.

[Venturer]

Are porn actress’s Prostitutes? Of course they are.

But todays porn isn’t yesterdays porn.

Todays porn has just as many amateurs in it as professionals.

Men photographing their wives in a performance and submitting it to various sites with or without pay.Swingers who photograph their parties. Group sex and women who have sex at parties with male strippers.

Are these women prostitutes or just whores?
How long do these relationships last after the gratuitous sex? Who knows?

[MrEdd]

The answer is clear; porn should be illegal.

[nathanbedford]

And Einstein's definition of insanity is...?

[Vaduz]

Legal contradiction well think of it like border control it’s how congress operates,it’s all about money.

[circlecity]

"And Einstein's definition of insanity is...?"

So we should scrap the entire criminal code because it hasn't stopped people from committing crimes? Sorry, I'm not connecting those dots.