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Can Pornographers Be Prosecuted for Paying for Sex?

People sometimes ask -- if it's a crime to pay someone to have sex with your friend, or even to pay two people to have sex so you can watch, why aren't pornographers equally guilty? Well, occasionally this gets litigated, and there's a new opinion out on this from the New Hampshire Supreme Court, State v. Theriault.

New Hampshire Revised Statutes 645:2 provides, in relevant part,

I. A person is guilty of a misdemeanor if the person:

(f) Pays, agrees to pay, or offers to pay another person to engage in ... sexual penetration as defined in RSA 632-A:1, V, with the payor or with another person.

Robert Theriault approached a woman and her boyfriend, offering them $50/hour to let him videotape them having sex (while they used "temperature blankets," which puzzles me). The government didn't allege "that the defendant solicited this activity for the purpose of sexual arousal or gratification as opposed to making a video," because that wasn't required by the statute. Theriault was convicted.

The New Hampshire Supreme Court held that applying the statute this way is unconstitutional, because "the production of sexually explicit but non-obscene videos is constitutionally protected," and upholding the law in a case such as this one would interfere with producers' right to create such videos. The court heavily relied on People v. Freeman, a 1988 California Supreme Court decision that reached the same result, and disagreed with People v. Kovner, a 1978 New York trial court decision that reached the opposite result.

It's not clear to me how right the court's logic is. Generally speaking, the right to create constitutionally protected speech doesn't include the right to violate non-speech-related laws in the process -- for instance, I don't have the right to use illegal drugs in the course of my speech-producing scientific research, or to trespass on closed government property to shoot a video. There might be some modest protection offered by United States v. O'Brien (1968), but that really does offer very slight protection when the law involved doesn't mention speech, and is applied to speech entirely without regard to what the speech conveys.

At the same time, I take it that a producer would have the right to violate antidiscrimination law in choosing actors based on their skin color (notwithstanding some arguments by my colleague Russell Robinson in favor of limiting directors' rights at least in some measure in similar situations). Should a producer have an equal right to violate prostitution law? If I feel that the one perfect actor for my movie is a noncitizen who doesn't have a work authorization, may I hire him nonetheless? Do I get an exemption from child labor laws (to the extent any statutory exemption for child actors doesn't apply)?

In any case, an interesting conceptual question, it seems to me.

Arkady:

(f) Pays, agrees to pay, or offers to pay another person to engage in ... sexual penetration as defined in RSA 632-A:1, V, with the payor ...


Does 'pay' include cover dinner and a movie?
12.10.2008 7:31am
martinned (mail) (www):
I suppose that, like philosophers of centuries past, we'd end up talking about "essence". Punishing producers of pornography for paying for sex would shut the industry down, since it is impossible to produce pornography without paying the "actors". An analogy would be respecting free speach but passing a law forbidding anyone from making a sound.

All the other examples you give are more incidental to the speach in question, they don't go to the essence of the activity. Reducing the range of actors to choose from for a film to people who are legally resident does not go to the essence of film making. Forbidding movie producers from hiring anyone, on the other hand, is a different story.

The same generally goes for Breasts-not-bombs type speach, although one can wonder about the situation where women take their tops of to protest the fact that they can't take their tops of. (Then again, I seem to recally prof. Volokh discussing that very question in Penn &Teller's Bullsh*t.)
12.10.2008 7:33am
Arkady:

Does 'pay' include cover dinner and a movie?


Fixed
12.10.2008 7:35am
David Schwartz (mail):
A law that significantly restricts an entire category of constitutionally-protected conduct has to run afoul of the constitution. Otherwise, the government can make possession of a printing press illegal without offending free speech.
12.10.2008 7:39am
martinned (mail) (www):
@David Schwartz: Playing advocate for the devil for a moment, both your reply and mine leaves the question of aggregation. What is "an entire category" of protected speach? Is the category pornography? Or film making? The fact that there is Supreme Court case law on pornography can't be the answer. How does one generally decide?

Don't even get me started about how many people have talked about Lawrence in terms of a constitutional right to sodomy. Same story.
12.10.2008 7:49am
Not_Convinced:
I am somewhat surprised that in this case Eugene's hypotheticals don't hold water.

Child labor laws and immigration laws don't prevent the movie from being made, don't foreclose an entire genre of movie content, and don't seriously infringe on content of the communication being made. A prohibition on paying actors to engage in sex, does for practical purposes, foreclose an entire category of content in a movie.

Now a child labor law that says it is illegal to employ anyone under 18 as an actor would be analogous... clearly such a law would impact creative freedom and content, practically foreclose an entire category of content in a movie, and therefore be unconstitutional.
12.10.2008 8:20am
Paulk:

A law that significantly restricts an entire category of constitutionally-protected conduct has to run afoul of the constitution. Otherwise, the government can make possession of a printing press illegal without offending free speech.


The difference here is that the state isn't telling people they can't make sexually explicit films. It's simply saying you can't pay someone to have sex. You can pay someone to simulate sex, you can make a sexually explicit movie with unpaid actors, or you can make a sexually explicit movie with actors receiving innovative considerations.
12.10.2008 8:23am
Slocum (mail):
So if it's legal to make pornography, why isn't it legal for johns to reclassify themselves (with a bit of help) as actor/director indie filmmakers -- videotaping sessions (in a way that would not permit identification) and offering them for sale on the web (even if sales were scant)? The pimps could even rent the 'film studios' and 'video equipment' to these new entrepreneurs and provide the 'actresses'.
12.10.2008 8:28am
Not_Convinced:
@Paulk:


You can pay someone to simulate sex


Some things ..er... can't be "simulated." By that argument, you can just require them to spend $200 million and CGI the whole scene virtually.


you can make a sexually explicit movie with unpaid actors


Sure...put that ad in Variety and see what response you get from professionals.


you can make a sexually explicit movie with actors receiving innovative considerations.


What is that? The vagueness of whether it will be construed as "pay" by the state makes such a scheme fraught with peril, and subject to selective enforcement.
12.10.2008 8:30am
Kristian (mail):
Couldn't the contracts be written where payments were for the 'right to record consensual sex'? That is, the payment is not technically for the sex, but rather recording and distributions rights to an event? That would make the filmers essentially the same as Fox/NBC/Espn with respect to sporting events. Fox doesn't pay the players, but rather buys the broadcast rights to specfic events...
12.10.2008 8:36am
Jeff the Baptist (mail) (www):
Punishing producers of pornography for paying for sex would shut the industry down, since it is impossible to produce pornography without paying the "actors".


Actually it would force the industry to move production to a location without such laws. There is a reason a lot of adult films are made in Nevada.
12.10.2008 8:48am
Reader5000:
Although off topic, I would just like to throw out that the act of copulation (or the filming and distribution thereof) is not speech. I think porn could easily be much more regulated than it is without putting anybody's 1a rights in jeopardy. Unpopular opinion sure, but smut producers parasitizing on the intent of the 1a is just a joke.
12.10.2008 9:00am
martinned (mail) (www):
@Reader5000: Thank you for illustrating my earlier point. Sex is not speech. Making a film is.
12.10.2008 9:04am
David Schwartz (mail):
martinned: I don't have a good rule for exactly how you figure out what a category of speech is, but certainly the courts have done it many times. Commercial speech, political speech, artistic speech, and many other such categories have been judicially identified. We have many rules of law that we can't precisely state and may that started out as rules long before we had any clue how to precisely state them. You might as well argue that "reasonableness" standards are invalid.

As for what the category is, I'd say pornography is definitely a category of protected speech. So is film. So is art.

It's much like any other constitutional question. What precisely are the contours of the 2nd amendment right? We know we have it, but we don't know precisely what it is.

But surely we can point to things that are clearly over the line and say, "whatever free speech means, it means the government cannot require a license for a printing press". This is in the "license for a printing press" category.
12.10.2008 9:14am
Wayne Jarvis:
Okay, how about this one. Gambling is legal in Las Vegas. But prostitution is not. Would it be legal if I went up to someone and "bet them $100 that they would not have sex with me"?
12.10.2008 9:14am
David Schwartz (mail):
The government didn't allege "that the defendant solicited this activity for the purpose of sexual arousal or gratification as opposed to making a video," because that wasn't required by the statute. Theriault was convicted.
I can't see why that could matter. Surely the government can't ban enjoying speech any more than it can ban speech itself. Speaking for the joy of speaking, so long as one conveys a message, is surely as protected as speaking to convey a message.
12.10.2008 9:16am
Awesome-O:
Does 'pay' include cover dinner and a movie?

Didn't need to fix it by deleting "cover." You could have inserted a comma after "cover":

"Does 'pay' include cover, dinner and a movie?"

I happen to be in favor of the Oxford Comma, but I don't care that much about it, so I'm happy to leave it like that.
12.10.2008 9:19am
hawkins:

There is a reason a lot of adult films are made in Nevada.


I thought the vast majority of adult films were made in California.
12.10.2008 9:21am
martinned (mail) (www):
@David Schwartz: Fair enough. I just wanted to point out that whether a law bans something essential or something incidental to a certain form of speech depends on the level of aggregation, i.e. whether one frames the issue as concerning film making or making porn. I guess that even goes for the printing press, since banning printing presses does not get in the way of e-books and audio books, meaning that arguably banning presses does not stop anyone from publishing whatever book they please. (I'm pushing it, I know.)
12.10.2008 9:21am
pintler:

It's simply saying you can't pay someone to have sex


It's illegal to pay someone to commit murder. I get that - murder is illegal on it's own.

But 'It's simply saying you can't pay someone to ______'.

What are the limits on what I can write in the blank? You can't pay someone to sing opera? Rap? No objection from me on those, but where are the boundaries on what a majority vote can ban?
12.10.2008 9:28am
martinned (mail) (www):
@Pintler: What you're talking about is a kind of general rational basis requirement. I don't think the American people would want the courts to have that kind of power. For an interesting example of what one might put on the blank, look at the older Posner's horse meat ruling from last year.
12.10.2008 9:33am
JA (mail):
I just thought of something akin to prostitution, where all instances of the underlying activity are perfectly legal except those based in contract.

Political appointments.
12.10.2008 9:35am
Clayton E. Cramer (mail) (www):
Why doesn't the First Amendment swallow up animal cruelty laws if the cruelty is in the course of making a movie? The same reasoning is in play. Sure, you could simulate animal cruelty for a film--you don't have to actually make an animal suffer to make it appear so on film--in the same way that you can simulate sex.

"But it wouldn't be as realistic!" the film maker and ACLU would respond. And that's true in both cases. And the same would be true for child pornography, too.

The fact is that People v. Freeman and similar cases come to the conclusion that they based on two false ideas: that sexually explicit materials are protected under the First Amendment (a position that seems not to have been noticed for a century and a half after its adoption, when publishing of a variety of indecent, scandalous, and libelous writings were punished as crimes); and that any law that interferes with production of sexually explicit materials but which is not targeted at speech, is therefore suspect.

Here's an analogy that will make clear how absurd this is. The Second Amendment protects a right to keep and bear arms. Where I live in Boise County, there's a resident who is quite upset at the moment because someone at 2:00 AM decided to deliver the coup de grace to an old Acura near her home. If they ever find the idiot who did this, and charge him with disturbing the peace, can he make the argument that the Second Amendment and Idaho Const. Art. I, sec. 11 exempt him from punishment? The disturbing the peace statute isn't aimed specifically at guns--and it is clear that the right to keep and bear arms was not a general guarantee that any possible use of a gun is protected.
12.10.2008 9:43am
martinned (mail) (www):
@Clayton E. Cramer: I know that the second amendment is close to your heart, but did you seriously make a direct analogy between 1A and 2A?

Otherwise, your animal cruelty example goes back to what was said before. Such laws don't go to the heart of a protected category.
12.10.2008 9:51am
KJJJ:
I'm quite puzzled by Professor Volokh's hypotheticals. A better example might be a California statute that prohibited professors from being paid to write. Similar to the New Hampshire statute, professors would be allowed to write for free however it would be illegal to make or receive payment for such services.
12.10.2008 9:52am
Clayton E. Cramer (mail) (www):
Of course I made a direct analogy. If you want to understand what was protected, you need to look at what the Framers intended. They did not protect every form of speech: obscenity, slander, libel, and treasonous speech could be punished. There were recognized exceptions to the right to keep and bear arms: slaves were not guaranteed such a right; neither were those whose loyalty to the United States was uncertain. Arms was understood to mean that which could be carried. I rather doubt that nuclear weapons or warships enjoyed that same protection.

Sexually explicit materials are not a protected category of speech. Indeed, the evidence is pretty persuasive that it was NOT protected, just as slander and libel were not protected categories of speech.
12.10.2008 9:55am
Not_Convinced:
It certainly does supersede animal cruelty laws. Laws against animal sacrifice are often voided when applied to religious expressions under .

To be analogous, it would have to be a movie where the central subject matter *was* legally protected film (non-obscene) where animal torture was the subject matter. Animal cruelty laws applied to a western, where horses have to appear to be shot or tripped, throwing the rider, can be done in ways that are not cruel, and that's a reasonable accommodation. Can't do that reasonably if the content of the file actually shows specific animal torture (unless you rule animal torture is "obscene" on which I express no opinion).

Andalusian Dog by Dali tortured a goat (slashing open its eye in the opening scene) ... so Dali should have gone to jail?

Finally, shooting the Acura is not speech, and it it were, then a valid time, place, and manner restriction would be available to forbid the 2:00 AM disturbance of the peace.... but (again assuming it is protected speech) it can't be flatly prohibited without a compelling need and allowing reasonable accommodation.
12.10.2008 9:59am
DiverDan (mail):
What if the actors agree to perform the sexually explicit scenes for free, provided that they retain all copyright in the scenes, and then license the right to distribute the film to the producer? Are the actors being paid for the sexual performance, or for an entirely different performance, i.e., the license to distribute the copyrighted performance? I think it's the latter, so applying the statute as written should not shut down the pornography industry, as long as the actors and producers are careful to be explicit about just what is being paid for.
12.10.2008 10:00am
Not_Convinced:
@Clayton E. Cramer: On what do you base the notion that "sexually explicit materials are protected under the First Amendment" is false?

Unlike child pornography where there is harm to the child, the alleged "harm" from sexually explicit material involving adults is where? If the harm comes from viewing the content, then that is a content-based judgment. Where would put it on this chart:

http://www.tcpalaw.com/free/speech.pdf
12.10.2008 10:13am
martinned (mail) (www):
@Clayton E. Cramer: If you're going to go for straight originalism without including any room for the last 200+ years of case law, you're not going to get very far on this question.

No matter how much the second amendment has been, let's say, "ignored" in the past 100 years, no reasonable reading of that amendment would allow for it to receive a similar treatment to the first am. The range of "reasonable regulations" is always going to be much greater for guns than for words. So the analogy is necessarily going to be of limited use only.
12.10.2008 10:14am
Clayton E. Cramer (mail) (www):

Unlike child pornography where there is harm to the child, the alleged "harm" from sexually explicit material involving adults is where? If the harm comes from viewing the content, then that is a content-based judgment.
If the only basis for deciding whether a law is constitutional or not is a question of harm, then a very large number of laws would have to go away. But the Constitution is not a libertarian document.
12.10.2008 10:21am
Not_Convinced:
@KJJJ:: Or hire the professors to simulate writing... a common practice I'm afraid.
12.10.2008 10:23am
Clayton E. Cramer (mail) (www):

The range of "reasonable regulations" is always going to be much greater for guns than for words.
Why? The words and ideas of Karl Marx Adolf Hitler have caused far more deaths than guns.
12.10.2008 10:23am
Not_Convinced:

If the only basis for deciding whether a law is constitutional or not is a question of harm, then a very large number of laws would have to go away. But the Constitution is not a libertarian document.


Nice try, but we are talking 1A here, not the entire constitutional basis for law. Restrictions on *speech* do require some articulated harm in order to identify a state interest.
12.10.2008 10:28am
Houston Lawyer:
I'd really like to see a discussion of whether the makers of p-rn are subject to any of the laws protecting employees from discrimination or other prohibited exploitation. If I make p-rn, but only make hetero p-rn, will the state of California sue me, like Eharmony, for discrimination against gays? Can p-rn makers use illegally obtained V-agra to help with production values? The list of questions goes on and on.
12.10.2008 10:35am
loki13 (mail):
@Clayton,

First, what the Framers intended doesn't matter. You can argue for texturalism, or original expected application, or history &caselaw- but you have no better powers of mind reading (and, apparently, worse) than most.

Second, your analogies between the Second Am. and the First Am. are absurd. While you may have a (un?)healthy obsession with the second, please don't use that to clouud your view of the First.

Third, from a textural standpoint, there would be greater protections for free speech. The absolutist viewpoint of J. Black (NO LAW ABRIDGING) would hold sway, and be extended to the states through the 14th. Then, of course, we would have the problem that Black did where you would have to define everything you wanted to regulate as non-speech.

Fourth, original expectd application is in the air as well; would you like to take the position of the Federalists &Blackstone (Alien and Sedition Acts) of prior restraints, or go with the Jeffersonions &Madison and follow that subsequent punishment be allowed? Since the Framers couldn't agree, and the people couldn't agree, it's a little hard for us to get definitive guidance.

Fifth- the one thing we do know is that in modern jurisprudence, the First Am. is, perhaps, the most well-defined of our constitutional rights, ass it hass been the most frequently litigated, starting with the Holmes/Brandeis opinions. This vast area of the law has developed in a delicate balance, allowing Americans some of the greatest freedom of speech in the world. If you would like to go back to the old system, perhaps you would like to be exposed to the libel regime of the UK (which is similar to the American one, pre- NY Times v. Sullivan)? What you call smut, others art. At one time, Naked Lunch was banned in the United States. That's a darn good book.

In the end, I want to make up my mind about what sppech I want to hear. And I want the market place of ideas to be enriched. I don't want you, or some government bureaucrat, to make those decisions for me.
12.10.2008 10:35am
hawkins:

The words and ideas of Karl Marx Adolf Hitler have caused far more deaths than guns.


This doesnt seem plausible
12.10.2008 10:40am
hawkins:

The words and ideas of Karl Marx Adolf Hitler have caused far more deaths than guns.

This doesnt seem plausible


I guess perhaps it is if only guns are considered, rather than weapons in general.
12.10.2008 10:42am
Randy R. (mail):
The fun fact about pornography is that sales of pornography in conservative and religious areas are quite high, often higher than in liberal or non religious areas. It's a $20 billion industry, so I really don't think that it's going away any time soon. Nor does anyone really want it to.

One need only go to Xtube to find plenty of people posting their sex acts without being paid. If they were paid, it would add billions to the sex industry GNP.

"The words and ideas of Karl Marx Adolf Hitler have caused far more deaths than guns."

The same can be said about the Bible, of course.
12.10.2008 10:43am
martinned (mail) (www):

The words and ideas of Karl Marx Adolf Hitler have caused far more deaths than guns.

Really? Couldda fooled me...
12.10.2008 10:44am
Brian L. Frye (mail):
For the record, the eye-slicing sequence in Un Chien Andalou (An Andalusian Dog) by Luis Buñuel and Salvador Dalí did not involve a goat or any living animal. It was actually the eye of a dead calf. The calf's eye stood in for a woman's. A goat would have looked odd, as a goat's eye is rather distinctive.
12.10.2008 10:53am
trad and anon (mail):
It's been a long time since I took First Amendment, but isn't this clearly a case of a conduct regulation? Unlike, say, a hypothetical ban on the sale of printing presses, paying for sex is something people do all the time for reasons that have nothing whatsoever to do with speaking or distributing speech.

Do your porn production in Nevada, folks. Otherwise you're not (legally) safe.
12.10.2008 11:01am
Daniel Chapman (mail):
Your snark is misplaced, Not_Convinced, and you look pretty foolish. Especially since you take it for granted in your pithy little post that paying someone for sex is "speech."

A little humility please... If you're that sure of yourself, you probably don't know enough to be posting on the subject.
12.10.2008 11:02am
Ryan:
I am in the middle of studying for my final in first amendment so this post is only half-procrastination:

I have always been interested in why most people seem to conflate the right to film a sex act with a right to a massive for-profit pornography industry. The first does not necessarily entail the latter.

For example:

A filmmaker can shoot a documentary showing individuals voting for Ralph Nader on their absentee ballots and then putting the completed forms in the mail (some states may prohibit this but that's not the point). He cannot however, pay those same individuals to vote for Ralph Nader just so that he can get the shot he needs.

This situation seems identical. You can videotape someone having sex, but you can't pay them to have sex so you can film it. Certainly, couples can engage in sex acts, film it, create works of art, etc. There is no payment involved, they are merely creating "speech." The only "speech" this interpretation would prevent is the adult companies that pay "actors" to engage in the sex acts they film (or if it pleases you, to film the sex acts in which they engage).
12.10.2008 11:10am
Hauk (mail):
This wasn't a First Amendment case, for those of you who keep referencing it. It was an Article 22 case - decided under the State constitution.
12.10.2008 11:16am
Not_Convinced:
@Brian L. Frye

You are of course correct. I don't know why I wrote goat, it was a calf. I did think the animal was alive however, but my only source for that was my film professor in college in 1983. I would be interested if there is any authoritative source either way.
12.10.2008 11:20am
David Chesler (mail) (www):
You were born a cow, you lived as a cow, now you're a fish.

It strikes me as reasonable that if perfectly legal sex can become illegal because money is involved, it can become legal again if both money and a movie are involved.

As the early commenters put it, it's not always clear when it's pay-for-sex. I once remarked to my wife that men always pay for sex, one way or the other; she said "Oh you'll pay, you'll be paying the rest of your life for that remark."

I'm also reminded of a scene in The Carpetbaggers where the director has sent his actor and actress, who are portraying lovers, off alone to a cabin to "rehearse" -- when they return, their portrayals of their characters, post-coital in that scene, appear a lot more realistic.
12.10.2008 11:21am
Smallholder (mail) (www):
Could all prostitution be made legal if the John brings a polaroid camera to the event and claims to be paying the prostitute for "modeling?"

I understand that there is a legal difference between filming pornography and engaging in prostitution, but don't see the bright line separating the two. It can't be the distribution and gross income of the pornographer - we can't ban art created for personal pleasure* while protecting mass-produced art that turns a profit.

In this light, I don't see how any prostitution can be made illegal - whether recorded by polaroid or not: "We were creating a work of art that was enjoyed in the moment and was recorded by my memory."

* Though the Lord knows my wife would like the government to ban my haiku.
12.10.2008 11:22am
loki13 (mail):
Ryan,

Since you are studdying for your first Amendment question, let me pose you the following hypothetical:

State of Ames passes the following law:
No one shall give anything of pecuniary value to another person for any written work.

Hmmm.... well, journalists and authors can always work for free, so according to your standards, this wouldn't fall afoul of the First Amendment, correct?

If you disagree with this, explain why this is different from your vote-buying hypothetical (and I think it is different) and why you vote buying hypothetical wouldn't implicate the First Amendment (I think it does, but it would still easily pass muster).
12.10.2008 11:23am
Randy R. (mail):
David Chesler, you comment has too much common sense in it to ever become popular. Or law, to be sure.
12.10.2008 11:24am
gattsuru (mail) (www):
The same can be said about the Bible, of course.


Not really, although it would help Mr. Clayton's argument if it were the case. Even assuming the tales of slaughter in the early New Testament are accurate (possible but not probable), the numbers pulled generally come up somewhere between 8 million and 12 million, and that's assuming a rather high 5 million during the Crusades. You might be able to get in the middle 30 million, but that's taking some truly ridiculous assumptions for the text of Genesis.

That's not to say the Bible isn't bloodthirsty as all get out, but most of the more directly violent moments came at a time where the human population just wasn't as large, and weapons weren't nearly as advanced. Back then killing 10,000 people was a huge and even doubtable boast, today we see the Huti doing ten times that and don't even make front page news.

Meanwhile, it's really not hard to find cases where people claiming to be communist or socialist decided to lead an ethnic or idealogical purge through mass starvation, and matching even the ridiculously high end estimates for the entire lifespan of Christianity over the a half decade.
12.10.2008 11:39am
martinned (mail) (www):
@gattsuru: That's what I was worried was going to happen. This question of who or what killed more people is like blogosphere kryptonite: guaranteed to throw any thread off-topic. Even I find myself almost unable to resist diving in.
12.10.2008 11:46am
pete (mail) (www):

You are of course correct. I don't know why I wrote goat, it was a calf. I did think the animal was alive however, but my only source for that was my film professor in college in 1983. I would be interested if there is any authoritative source either way.


You can use the example of Even Dwarves Started Small (Auch Zwerge haben klein angefangen) by Werner Herzog. Dwarves in that movie abuse live chickens by throwing them at each other, have a cockfight, crucify a monkey, and butcher a live pig. They also abuse some insects. The movie was filmed in Spain, but would not pass ASPCA muster here.
12.10.2008 11:47am
Not_Convinced:
@Smallholder: Have you never been in a seedy part of town, and see the placards for "Nude Modeling, by the half-hour" where the "studio" is provide for the pim... er... proprietor?

Hence, many statutes include some intent element as to "the purpose of sexual arousal or gratification" of the party doing the hiring. The statute in question for this discussion had no such requirement.
12.10.2008 11:47am
Ryan:
Loki,

Obviously your hypothetical law would wipe out the first amendment protections of the press without actually prohibiting any speech. And I agree, my theory doesn't work in the context of the press.

But then, I don't believe it has to; the first amendment specifically mentions the "press" separately from speech. The "press" implies an industry built on the dissemination of current information, not just the freedom to write what you want. Given the text, the first amendment seems to protect the industry of the press (and thus the necessary economic conditions that allow for its existence). There is no special consideration given to the pornographic industry, and thus it does not protect the economic conditions necessary for its existence.

The conduct regulations that wipe out the ability of the press seems to be a common retort to the distinction between speech and industry. At least in my view, I think that the particular industry of the press is specifically protected and the pornographic is not. This means you CAN take away the economic conditions behind it without violating the first amendment.
12.10.2008 11:49am
Not_Convinced:
@pete: Thank you very much.

Note, however, that cockfighting is still legal in at least one state in the US, last time I checked. However, "crush" films are purported illegal under federal law. Seems rodents have more friends in Washington (or friends with friends in Washington) than chickens do (why am I not surprised?).
12.10.2008 11:50am
neurodoc:
Yesterday, Minnesota Court of Appeals rejected Sen. (still) Larry E. Craig's latest effort to withdraw his guilty plea to disorderly conduct charges after allegedly trying to solicit sex from an undercover police officer. One of Craig's arguments on appeal was that his behavior in the airport bathroom stall should be considered legally protected speech. The court didn't buy it, though, holding that even if Craig's actions in the stall were considered speech, they can be restricted because they invaded the "privacy interest" of a "captive audience" - in this case, the undercover officer in the neighboring stall.
12.10.2008 12:01pm
Not_Convinced:
@Ryan: If I buy your distinction of the "press" as an industry for dissemination of current information, then what is "speech" if not dissemination of information outside the industry of the "press?" What about historical information rather than current? What about opinion... is that "information" in your view? To photographs and video convey "information" be it current or otherwise? What about a legitimate instructional sex video? Is that not a product of the "press?" If not, how about an instructional sex video teaching diabetics how to perform injections with a new needless syringe or use a new meter? How about an instructional video for physical therapists on a new massage technique?

What is and is not "speech" is a much more slippery slope than it all being speech, and deciding where it is or is not protected or exempted.
12.10.2008 12:01pm
loki13 (mail):
Ryan,

You do realize that in caselaw, Brennan's desired structural distinction between the 'press' and 'speech' does not exist, and we live in Burger's world where press=speech (which is actually to be desired, or else we get in endless debates about whether Prof. Volokh is a member of the press when he blogs). So while you may have a principled textural distinction, it doesn't exist in SCOTUS right now.

As for pornogrpahy, while it can be treated differently (even allowing for licensing schemes, which are a form of prior restraint), case law still allows a great deal of First Am. protection for it. Arguing that obscenity != the press is a non-winner in court, ass you need to analyze it as speech, not the press.

Anyway, for your hypo what you're looking for is the idea of a content-neutral law. For example, if the Fire Marshall closes the New York Times press because of fire code violations, then th ordinance should be constitutional both facially and as applied. You can look to discrimnatory intent (Grosjean) or disparate impact (Minn. Star) on the press, or do a straight O'Brien test.

There can also be a balancing test when there is a lexical ordering when two constitutional provisions conflict -- for example the Sixth (impartial jury) and the First (Nebraska). The First tends to win out if it is a content-based distinction, especially if it is a prior restraint (presumptively unconstitutional).

So for your hypothetical, it would depend on the wording of your statute:

1. No person shall buy the vote off another.
-Content neutral, go through the test, upheld.

2. No person shall buy the vote of another, and publicize it.
-Content-based, strong state-interest, probably struck down (why publcize it? why not just buy the vote of another? think Son of Sam); perhaps argue that this is a lexical problem with a constitutional mandate for no vote buying, but I don't see it.

3. No person shall buy the vote of another, and film it.
-Content-based, strong state-interest, but what about other mediums (print)? Probably struck down.

Good luck with the exam!
12.10.2008 12:07pm
neurodoc:
I'm surprised that aside from first-responder Arkady, no one has plumed the humorous possibilities in all this.* There are so many, including the notion that serious actors and actresses would not consider these roles unless they were going to be paid for their efforts,** and hence artistic expression would suffer; the notion that pornographers might be likened to Fox and ESPN, who also pay for the broadcast rights to sport contests; etc.

* I see now that others did later.
** re non-monetary compensation, that wouldn't get around the New Hampshire statute, would it, even if the statute only says, "Pays, agrees to pay, or offers to pay another person..."? Giving something of value, whether cash, gold, a car, work of art, etc. amounts to "paying," doesn't it?
12.10.2008 12:16pm
Ryan:
Not Convinced,

"Current" should probably not have been in the definition. I agree that exactly what the press covers is amorphous and that many of your suggestions should fall within that category.

The main point I try to make is that there is a distinction between speech and press. I do not believe that the word "speech" implies any sort of industry whatsoever. "Press" does. While you cannot take away the necessary conditions of "speech" (i.e. law prohibiting making a sound) you can prohibit economic conditions that could make some forms of speech less available (i.e. prohibiting paying for sex). "Press" is not only speech, it is an industry that provides information to the public. This implies an additional level of protection. You cannot outlaw all printing presses or make it illegal to pay a reporter. That would get in the way of the industry, which from the text of the constitution, is singled out as worthy of additional protection.

Finally, I think some of your suggested laws (unless you can think of some reasons I cannot) would likely not pass minimum rationality review (or would be so strange that the court would strike them done while saying they are applying minimum rationality).
12.10.2008 12:17pm
neurodoc:
JA: I just thought of something akin to prostitution, where all instances of the underlying activity are perfectly legal except those based in contract.

Political appointments.
Professor Volokh discussed the Blagojevich matter yesterday.
12.10.2008 12:22pm
Ryan:
Loki,

Thank you for the detailed explanation. I do know that my distinction between speech and press is not favored at the moment. Although it does seem odd to conflate an act and an industry, sigh, maybe another day... Thanks for the well wishes!
12.10.2008 12:24pm
jtb (mail):
Ryan, aren't you construing to disparage or deny other rights based on the enumeration of the right of the press? As I recall that's a big no no. I find your no industry protection for anything but press interpretation a little scary. Can congress ban sale of guns (you can still keep and bare one if someone gave it to you)? Can they prevent defense attorney's from getting paid?
12.10.2008 12:30pm
Not_Convinced:
@Ryan: Let me give you a real case I have direct experience in.

I am a photographer... both the "press" kind and the "art" kind. My art it typically nudes in nature... particularly water and the beach. I am not a hack, but an award winning photographer, and have exhibited my work. My them is generally demonstrating harmony between the human body and natural bodies. I also sell prints, in addition to doing commissions.

I own a home on the beach. In my state, I own the beach to the waterline. I frequently shoot nude models on my property in the dunes and on the beach. This is sometimes in view of the public, and always in view of my neighbors from their private property.

The municipality has a "public indecency" ordinance that my model would be violating. It has an articulated harm of "offending people by the nudity" and the stated interest is to "prevent" that harm.

Enforcement of this ordinance would prevent me from creating my works.

So how would you analyze this ordinance as applied to me?
12.10.2008 12:30pm
Aultimer:

Clayton E. Cramer:

The[ framers] did not protect every form of speech: obscenity, slander, libel, and treasonous speech could be punished. [] Sexually explicit materials are not a protected category of speech.

As I'm sure you intended it, I feel compelled to point out the false assumption in your argument that all explicit materials are obscenities.

Even leaving arty porn aside, you can't seriously believe that newsworthy depictions and medical materials regarding explicit sexual matters can be constitutionally criminalized.
12.10.2008 12:38pm
Obvious (mail):
Of interest, it is easy to find on the net sites that offer pornography that simulates prostitution. That is, there are a series of images, beginning with picking up a pretty woman off the street, followed by handing her money, which she shows off to the camera, followed by sex, occasionally with pictures of money strewn on the bed next to the sex partners.

That is, a woman is being paid to be photographed while SIMULATING prostitution. That is, a woman is being paid to be photographed having sex to simulate being paid to have sex.

The mind boggles.

Isn't this best solved with a Constitutional amendment prohibiting legislation outlawing capitalist acts between consenting adults?
12.10.2008 1:02pm
PubliusFL:
Not_Convinced: I am somewhat surprised that in this case Eugene's hypotheticals don't hold water.

How about the illegal drug hypothetical? Let's shift it to illegal drugs in the context of film-making instead of scientific research, to make the analogy closer.

The government can't ban artistic depictions of sexual conduct, granted. The government wouldn't be able to ban artistic depictions of drug use, either. And in order to avoid risk of prosecution, depictions of drug use in movies and TV shows must be simulated (and there ARE movies and TV shows where drug use is a central theme -- think Cheech &Chong or Showtime's "Weeds").

So why couldn't a law prohibiting payment for sexual acts similarly require depictions of those sexual acts in movies to be simulated? You say some things just can't be simulated and joke about CGI porn, but considering the things horror movies simulate happening to body parts of all kinds (even low-budget independent horror flicks), I'm sure FX artists are creative enough to realistically simulate any kind of sexual act necessary.

And even if we assume that simulating sex acts is impossible, what follows from that? Suppose a producer wants to make a film about the use of a certain illegal drug. If no one could figure out a way to realistically simulate the use of that drug, does that mean that laws restricting the importation, sale, or possession of that drug could not constitutionally be enforced in connection with the making of the film?
12.10.2008 1:04pm
some dude:
"Pornography" means "images of prostitutes." Case closed!

Only those states that allow pornography and also prostitution are consistent.
12.10.2008 1:20pm
loki13 (mail):
PubliusFL,

I think the distinction that you might be looking for is this:

1. Drugs are illegal. Period. Whether you buy them or not.

2. Sex is not illegal (yet?). Only payment for sex is (except Reno).

The First Amendment would protect the filming of transactions for drugs/sex and subsequent publication (ignoring other actions, for example, public discloure of private facts).

It would not necessarily protect the underlying transaction.

If a serious work of art is produced through the payment of actors to engage in sex (or, for example, nudity), you would have to look at the application of the law in the context of the First Amendment. Same with the drugs.

So, for the drugs, it is easy- the drug laws are a content neutral law that advances a compelling (even substantial) state interest yada yada yada. The fact that it adversely impacts the media is but a small part. I think you could easily prosecute someone for buying drugs to film it (the same way you could prosecute someone for robbing someone to film it!); the question is whether the government could prosecute only the distribution of the film.

I think that the issue of sex is something that is harder for courts, since, unlike drugs, sex is not universally banned, only payment for it, and there aren't the same adequate substitutes while filming as there are for drugs.
12.10.2008 1:34pm
Not_Convinced:
PubliusFL: Good work. But it isn't illegal to pay an adult to use illegal drugs so you can film it. Any such law would, IMHO, infringe on 1A.

In the same vein, the act of consensual sex among adults is legal. It is illegal to use the drugs.

Requiring CGI has 2 problems... First is cost, in that it makes it financially impossible for all but the richest to do it. That's unconstitutional. Second is artistic freedoms are (currently) directly affected.
12.10.2008 1:35pm
A.W. (mail):
I would just say this to anyone claiming that this should be protected...

Suppose I shot a man, let's say a person consenting, in cold blood but on camera, to make a movie. so that isn't murder?

Why should we act like it is different because sex is involved?

Also here is a closely related connundrum I throw out to people. Take quid pro quo sexual harrassment, as in, "sleep with me or you're fired"... how is that NOT solicitation of prostitution?
12.10.2008 1:35pm
martinned (mail) (www):
@A.W.: You seem to be a bit confused about the nature of consent. Consenting to be murdered is a contradiction in terms, and your sexual harrassment example does not involve consent so much as blackmail.
12.10.2008 1:41pm
Ken Arromdee:
I'd really like to see a discussion of whether the makers of p-rn are subject to any of the laws protecting employees from discrimination or other prohibited exploitation.

I don't see how it would be any more problem than a non-sexual acting job. You can say you want to hire a woman for a part without being accused of sex discrimination.
12.10.2008 1:45pm
Clayton E. Cramer (mail) (www):

I guess perhaps it is if only guns are considered, rather than weapons in general.
And if you include among "weapons" exhaust fumes, and working people to death (as in the Gulag Archipelago) or creating artificial famine (as in the Ukraine).
12.10.2008 1:51pm
Clayton E. Cramer (mail) (www):

Nice try, but we are talking 1A here, not the entire constitutional basis for law. Restrictions on *speech* do require some articulated harm in order to identify a state interest.
Certainly. But until fairly recent times, the notion that all forms of speech or publishing were accorded the same level of protection was considered a crackpot notion.
12.10.2008 1:53pm
Clayton E. Cramer (mail) (www):

"The words and ideas of Karl Marx Adolf Hitler have caused far more deaths than guns."

The same can be said about the Bible, of course.
As others have pointed out, this isn't quite correct (perhaps because Marx and Hitler had the advantage of superior technology) but are you agreeing that words and ideas can be as great a potential hazard as guns?
12.10.2008 1:55pm
Clayton E. Cramer (mail) (www):

Finally, shooting the Acura is not speech, and it it were, then a valid time, place, and manner restriction would be available to forbid the 2:00 AM disturbance of the peace.... but (again assuming it is protected speech) it can't be flatly prohibited without a compelling need and allowing reasonable accommodation.
My point was not that it was speech, but that some idiot could argue that the restriction was violating his freedom to keep and bear arms. I think that's absurd, but no more so than claiming a right to pay people for sex is.
12.10.2008 1:57pm
Clayton E. Cramer (mail) (www):

In the end, I want to make up my mind about what sppech I want to hear. And I want the market place of ideas to be enriched. I don't want you, or some government bureaucrat, to make those decisions for me.
I generally agree with you (although I will draw the line at child pornography). But the First Amendment isn't a magic genie that gives you what you want when you rub it.
12.10.2008 2:01pm
loki13 (mail):
Clayton,

The reason your analogy is so wwrong-headed (on so many levels) is that if a person, say, was screaming "Vote for Democrats" through a megaphone on his property, at 2am, he could still get the distubance of the peace (or similar noise abatement) despite the First Amendment- as it is a content-neutral law. So your hypo doesn't hold for the Second Amendment, even if it had the same caselaw to back it as the First.

As a First Amendment scholar, I highly recommend your work on the Second.
12.10.2008 2:04pm
loki13 (mail):
Clayton,

No, it isn't a magic genie. But I think the jurisprudence has reached a (mostly) sensible balance which is this; anytime the government tries to arbitrate what is good speech and what is bad speech, courts should be incredibly suspect. Your 'smut' is my art; your nonsense is my political discourse, your libelous statements are my political parody.

I think that is wise, and when in doubt, the best answer is more speech, not less.
12.10.2008 2:07pm
Not_Convinced:
You can't legislate against idiots making idiotic arguments ... that's what judges are for. My response to the Acura shooter: “An armed robber cannot escape responsibility for his or her conduct by pointing out that ‘stick ‘em up’ is speech or by reciting the Gettysburg address during the robbery.” _Huffman and Wright Logging Co. v. Wade_, 857 P.2d 101, 108, n. 9 (Or. 1993) (en banc).
12.10.2008 2:09pm
PubliusFL:
loki13: I think the distinction that you might be looking for is this:

1. Drugs are illegal. Period. Whether you buy them or not.

2. Sex is not illegal (yet?). Only payment for sex is (except Reno).


The distinction doesn't have to be so big. Under federal law, possession of marijuana (at least as a first offense) is a misdemeanor, while sale is a felony. Many state laws are more forgiving of mere possession. My understanding is that mere use of marijuana is rarely criminalized outside of the military (where it is a UCMJ offense).

It is not much of a stretch to imagine a situation where trafficking in marijuana is still a felony, but mere possession for personal use is merely a civil infraction (not a criminal offense) and marijuana use is not prohibited at all.

In such a situation, where a pot-culture movie could be made showing the possession and use of marijuana without any criminal offenses being committed, would it be unconstitutional to prosecute the drug dealer who sells the producers the marijuana used in the movie?

So, for the drugs, it is easy- the drug laws are a content neutral law that advances a compelling (even substantial) state interest yada yada yada. The fact that it adversely impacts the media is but a small part. I think you could easily prosecute someone for buying drugs to film it (the same way you could prosecute someone for robbing someone to film it!); the question is whether the government could prosecute only the distribution of the film.

WAS anyone talking about prosecuting the DISTRIBUTION of the film? I thought we were talking about whether the filmmakers could be prosecuted for paying for the sex that was filmed in the process of making it. That doesn't mean the film couldn't then be distributed. Just like if the makers of a movie commit some labor law violation in the course of making it, they may be subject to prosecution for the labor law violation (and have to pay fines, etc.) but the movie doesn't thereby become contraband.

Not_Convinced: But it isn't illegal to pay an adult to use illegal drugs so you can film it.

But it IS illegal to provide them with the drugs, even though the actual use or filming the use may not be illegal. Similarly, engaging in sex acts and filming the sex acts may be legal while paying for the sex acts is illegal.
12.10.2008 2:17pm
Assistant Village Idiot (mail) (www):
Just for fun, I notified Hicks, one of the concurring judges in the case, of the discussion here.
12.10.2008 2:27pm
loki13 (mail):
PubliusFL,

It doesn't help when you slectively quote from me, and ignore the remainder of my post that answers your question that re-posed. The point that I made is there is a difference betwen a content-neutral law that affects speech incidentally, and a contant-neutral law that does more than that.

We are both in agreement that a content-based law (prohibiting the airing of footage of people having sex or doing drugs) is likely unconstitutional).

If it is content-neutral, though, you have a different inquiry.

Sometime you look for improper motive of the legislature or disparate impact on speech. I don't think either is implicated here. So you go to an O'Brien test.

I think, as each law is applied, the drug laws are an easy case. I also think, as Eugene points out in his post, it is a little bit more of a struggle with paying actors for sex but courts generally favor the First Amendment rights of the defendant. Some courts distinguish based on who pays for the sex (if the person pays for sex with themselves, it is prostitution, for sex with another while filming, it is pornography and can be protected). Others (Calif. courts) base it on who the sexual gratification is really for (not the performers but the remote audience, but that is a somewhat specious distinction).

Anyway, that's enough for me. But I would appreciate it in the future if you didn't do such a bad job of selectively quoting to set up your strawman.
12.10.2008 2:38pm
Clayton E. Cramer (mail) (www):

As I'm sure you intended it, I feel compelled to point out the false assumption in your argument that all explicit materials are obscenities.

Even leaving arty porn aside, you can't seriously believe that newsworthy depictions and medical materials regarding explicit sexual matters can be constitutionally criminalized.
I don't assume that all explicit materials are obscenities. I was at a friend's house, and I found a book on the shelf that included photographs of little girls naked with their legs spread. It was a book on identifying sexual abuse, based on inner thigh bruising, and similar, considerably more unpleasant diagnostic methods. Books of a scientific nature have generally been either explicitly exempted from obscenity statutes, or not been punished, because there was a legitimate purpose to them. Was it a nauseating book to look at? Yup. Although I suspect that there are sick people out there who find it quite stimulating.

It is certainly possible to abuse such exceptions. I recall that the Meese Commission Report was reprinted by an enterprising sort who added examples of the obscenity that the Report was complaining about. Would such a book survive the serious cultural or scientific exemption? Sure. But that's not generally the case with the materials in question in the prostitution exemption cases.
12.10.2008 2:45pm
Clayton E. Cramer (mail) (www):

The reason your analogy is so wwrong-headed (on so many levels) is that if a person, say, was screaming "Vote for Democrats" through a megaphone on his property, at 2am, he could still get the distubance of the peace (or similar noise abatement) despite the First Amendment- as it is a content-neutral law.
Agreed. And that's the reason that a law that prohibits paying someone for sex (the law against prostitution) should still apply if you are paying someone to have sex in a movie. The prostitution law is purpose-neutral. It doesn't matter if you are hiring a woman to have sex for your own gratification, or to make a movie, or because you like the sensation of power that comes from paying for sex. The law makes it illegal, and it doesn't matter why.

Now, should there be laws against prostitution? I don't think so. Should there be laws against making movies where people are having sex? I don't think so. But that's a long ways from "There's a constitutional right to do so."
12.10.2008 2:49pm
Clayton E. Cramer (mail) (www):

But I think the jurisprudence has reached a (mostly) sensible balance which is this; anytime the government tries to arbitrate what is good speech and what is bad speech, courts should be incredibly suspect. Your 'smut' is my art; your nonsense is my political discourse, your libelous statements are my political parody.

I think that is wise, and when in doubt, the best answer is more speech, not less.
There's a difference between "this is good policy" and "this is what the Constitution requires." And that's my criticism of this bizarre situation where all you need to defeat a law against prostitution is to have a camera rolling.

Those trying to argue that the First Amendment doesn't swallow up drug laws in the same way are simply expressing that they don't see anything wrong with erotica, but are prepared to accept that there's something wrong with illegal drug use. The same reasoning applies to both, and equally validly.
12.10.2008 2:52pm
loki13 (mail):
Clayton,

Without going into the full vagaries of why we look at content-neutral law, imagine the following:

1. A law that imposes a large tax on newspapers above a certain distribution number, and exempts all others. Only four newspapers in the state are affected, all vociferous critics of the current governor, happen to be affected.

Content neutral, but constitutional?

2. A law imposes a tax on printing ink, but exempts below a certain volume. One newspaper happens to pay 70% percent of the tax, and is neither allied with nor a critic of the state government.

Content neutral, but constitutional?

3. A law requires all people blogging (as defined by another statute) to not use electricity while blogging.

Content neutral, but constitutional?

In short, there are many content-neutral laws that either by malicious purpose (example 1) or disparate impact (example 2) but not therough viewpoint discrimination, heavily impact our First Amendment rights. Sometimes we need a more searching inquiry. While the prostitution/1st Am. is certainly on the far end of the inquiry, most courts have avoided it by skirting around the issue and construing the prostitution statute narrowly (who is paying for the sex, who gets the sexual gratification) or combining that with a 1st Am. adminishment.

I think the trouble you have is the policy/Constitution requirement. It is clear that the text is not the end-all/be-all (NO LAW) because there will be some laws that are necessary that are content-based (perjury in Federal trials). It is also clear that it is not sufficient; some content-neutral laws would eviscerate the First Amendment (no works shall be published for pecuniary interests comes to mind) without a more searching inquiry.

Behind every complex problem lies a simple, easy-to-understand, wrong answer.
12.10.2008 3:05pm
Garrett Johnson:
In a similar vein, but in the form of a different Constitutional protection, what about the right to privacy? The right to privacy protects intimate activities that take place in the privacy of one's bedroom from the long arm of the law, but that same right to privacy mysteriously disappears as soon as money is thrust into the equation.

I suppose cameras are to free speech what money is to privacy? It's almost as if when it comes to prostitution, the Constitution need not apply.
12.10.2008 3:09pm
David Schwartz (mail):
Also here is a closely related connundrum I throw out to people. Take quid pro quo sexual harrassment, as in, "sleep with me or you're fired"... how is that NOT solicitation of prostitution?
How is "sleep with me or I'll break off our relationship" not solicitation of prostitution?
12.10.2008 3:19pm
Brian S:
Actually, the argument taking place in this thread should be completely reversed.

The fact that prostitution is illegal should not be seen as an argument in favor of removing the 1st Amendment protection for pornographic films.

The fact that the 1st Amendment protects pornographic films should be a sign to us that laws against prostitution are constitutionally absurd.

There's no quandary here at all unless you assume, due to long-standing practice, that laws against prostitution are kosher. Why are we making that assumption? The very fact that it would be, as posters have pointed out, very easy to configure an act of prostitution as a "performance" should tip us off that maybe that assumption is flawed.

Why shouldn't we just assume that prostitution is, in fact, a "performance" and is therefore protected, rendering laws against it void?
12.10.2008 4:06pm
loki13 (mail):
Brian S.,

I disagree with you. First, it is not "easy" to structure prostitution as a performance, despite what an episode of Boston Legal might try to show you. Since some states differentiate based on who pays, you would get little gratification. Since other states arguably based their rulings on the question of gratification, you would have to have an intent to publicize, and many people do not want to broadcast their involvement with a prostitute. Still left open, if you were simply filimg prostitution with no differing camera angles, director, narrative etc. is the question of whether that would then become 'obscenity' and not protected.

Anyway, this goes back to the question of whether states have a police power to regulate for morality or even to regulate speech for secondary effects (Playtime Theaters). While I think sexual morality is in the eye of the beholder, and prostitution should not be illegal, I nonetheless belive it is the right of the people of a state to choose to make it illegal. I also think that while paid performances for sex on film are a tough call, paid live performances are often less protected (but see an Oregon decision), and both exist under the outer gambit of First Amendment protection, if at all.

So to sum up-
Prostitution can be made illegal by the states.
The question of paid performances in pornography is a very difficult one, and one that has been wrestled with by the courts. The existence of the porn industry in San Fernando is mainly due to the Cal S. Ct. (Freeman) that is not universally followed by other states.
12.10.2008 4:16pm
PubliusFL:
loki13: I'm sorry you felt like I was setting up a strawman. That wasn't my intent. My point was that the law at issue in the original post does seem to be a content-neutral prohibition analogous to the drug law scenario I set up in my last post. So I left out stuff you wrote that I thought I was implicitly agreeing with: That the First Amendment would protect the filming of transactions but not the underlying transaction, etc.

I understand what you're saying about the distinctions courts create between prostitution and pornography (who's paying, who's being sexually gratified) in order to exempt the production of pornography from anti-prostitution laws. I'm wondering whether (and if not, why not) courts would create the same kind of distinctions to exempt the production of pot-themed movies from laws prohibiting the sale of marijuana.
12.10.2008 4:26pm
loki13 (mail):
PubliusFL,

My quick answer is no. There's a few things to think about:

1. I go back to my original distinction that all (or most drug use) is criminalized by use (aka possession), whereas it is not illegal to have sex.

2. Courts have long recognized that the power of the state to take away the profit motive from artistic/literary works present a chilling effect upon them (as opposed to 'purely commercial speech' which is hardy and will find a way around the regulation). Without the ability to pay, for example, nude models for still lifes, or actors to copulate for a realistic depiction of an artistic (or pornographic) scene, there is a high likelihood that you would be unable to shoot that scene, chilling speech. IOW, the state is prohibiting paying actors to perform in a movie what they would be able to do if you didn't pay them.

3. The same issue does not arise so clearly in the context of the drug laws. Whether you purchase the drugs for the movie or not, the possession of the drugs is illegal. Despite this, some actors take their chances with real drugs (from the 70s) but the majority use fake drugs and act the effects, in the same way they would act a murder, rape, or robbery.

I am not sure if I have made the distinction ass clear on the page as it is in my mind, and, as I wrote before, this is the outer limit of the First; nevertheless, I think there is a distinct difference between the sex example and the drugs example.
12.10.2008 4:38pm
Brian S:
loki:

The existing case law postulating an obscenity exception to the first amendment is absurd, and merely reflects previous courts' desire to not read the plain text of the amendment, which includes no such exception. So I don't find that part of your post very persuasive. I also think that the distinctions you [almost certainly rightly] believe the courts would draw based on the intent to publicize are similarly empty - speech is speech, and a performance is a performance, even if my intention is to have a very small audience; to conclude otherwise would be to take the perverse position that very public and noticeable speech is more free than private and unobtrusive speech.
12.10.2008 5:04pm
Clayton E. Cramer (mail) (www):

The fun fact about pornography is that sales of pornography in conservative and religious areas are quite high, often higher than in liberal or non religious areas.
Can you give me a citation for this? I do not find it hard to believe, but I would love to see some actual data on this.

I don't find it hard to believe that this is true and for the reason that you imply.

But I also find it easy to believe that the study may be looking at a proxy for the actual sales of porn. (Is there a single industry data source?) And of course, even in areas that are quite "conservative and religious" there are still LOTS of people who are neither, and they could also be the big consumers--maybe even bigger consumers per capita than their counterparts in liberal areas.
12.10.2008 5:13pm
loki13 (mail):
Brian S.,

Please note, that as I referenced above your reading of the text in a literalist approach hass a lot of problems. The last literalist reader was Hugo Black.

First, you have the incorporation problem. Should be easy enough.

Second, there is the 'no law'. But- no law means just that, no law. No exceptions. That's pretty absurd. Regardless of fighting words, or obscenity... how about national security? And it doesn't even get into the content-neutral categories (laws that are written to affect things in general, but can impact speech).

As I wrote above, the jurisprudence, on a case-by-case, issue-by-issue, has evolved to take into account the myriad possible scenarios, for the most part correctly (IMHO). The reference made to 'intent to publicize' was not about the First Amendment; it was about how the Cal. S. Ct. interpreted the statute in question to avoid the First Amendment. IOW- if the attempt was not the gratification of the parties involved, but the larger audience, it was not prostitution.

But as a general matter, yes, audiences can be very small and still be speech. But does the First Amendment protect speech where there is no audience?
12.10.2008 5:18pm
Clayton E. Cramer (mail) (www):

Without going into the full vagaries of why we look at content-neutral law, imagine the following:

1. A law that imposes a large tax on newspapers above a certain distribution number, and exempts all others. Only four newspapers in the state are affected, all vociferous critics of the current governor, happen to be affected.

Content neutral, but constitutional?
Because it interferes with freedom of the press, it seems clearly unconstitutional. A general business tax, however, that applied equally to all businesses with revenues above a certain size would be constitutional.

Not, however, if it was written with the intention of imposing a special burden. Think of the example of the "minute of silence" provision passed by the Alabama legislature a few years back.



2. A law imposes a tax on printing ink, but exempts below a certain volume. One newspaper happens to pay 70% percent of the tax, and is neither allied with nor a critic of the state government.

Content neutral, but constitutional?
Same problem as #1. A tax specifically on newspapers or materials required for them would be a problem. A general tax on business supplies that was not aimed specifically at newspapers would not.


3. A law requires all people blogging (as defined by another statute) to not use electricity while blogging.

Content neutral, but constitutional?
Clear violation of the First Amendment. A prohibition on using electricity for any purpose wouldn't be a violation of the First Amendment, although clearly far exceeding Congressional power under the commerce clause.


In short, there are many content-neutral laws that either by malicious purpose (example 1) or disparate impact (example 2) but not therough viewpoint discrimination, heavily impact our First Amendment rights. Sometimes we need a more searching inquiry. While the prostitution/1st Am. is certainly on the far end of the inquiry, most courts have avoided it by skirting around the issue and construing the prostitution statute narrowly (who is paying for the sex, who gets the sexual gratification) or combining that with a 1st Am. adminishment.
Are you claiming that the law against prostitution was passed to stop adult films from being made? That's the analogy to your examples above.


I think the trouble you have is the policy/Constitution requirement. It is clear that the text is not the end-all/be-all (NO LAW) because there will be some laws that are necessary that are content-based (perjury in Federal trials). It is also clear that it is not sufficient; some content-neutral laws would eviscerate the First Amendment (no works shall be published for pecuniary interests comes to mind) without a more searching inquiry.
The problem that I have is that the courts have taken a position about what is protected speech that is far outside what the Framers intended.



Behind every complex problem lies a simple, easy-to-understand, wrong answer.
You mean like exempting adult film makers from having to obey a law that EVERYONE ELSE has to obey?
12.10.2008 5:33pm
PubliusFL:
loki13:

Regarding your #1, I pointed out that in some states possession of marijuana for personal use is NOT a crime, while sale of marijuana is. This makes the marijuana similar to the prostitution law: the personal act is not illegal, but the commercial transaction is. (Incidentally, this reminds me of obscenity law, where producing and selling obscenity can be prohibited, but personal possession -- with the exception of child pornography -- can't.) Is the answer still no for those states, or if federal law changes to be like the laws of those states?

Regarding #2, as I stated above, even leaving aside CGI, I don't buy that pornographers would not be able to figure out a way to shoot realistic hard-core scenes with simulated body parts, just like producers of even low-budget horror films are able to shoot shockingly realistic scenes of torture, dismemberment, etc. using simulated body parts. From a technical FX makeup/prosthetic perspective, the challenges are similar. Why is being able to film unsimulated sex acts more constitutionally important than being able to shoot unsimulated acts of drug use? And to use a hypothetical I posed to Not_Convinced, would your answer change if there were some particular drug the use or effects of which are difficult to realistically simulate?

Your #3 is similar to your #1: In some states, possession of marijuana is not a crime, and it is not difficult to imagine the same being true federally. But I have a feeling that that wouldn't make a big difference in how the courts would view paying for drugs versus paying for sex in the context of filmmaking.
12.10.2008 5:35pm
Clayton E. Cramer (mail) (www):

1. I go back to my original distinction that all (or most drug use) is criminalized by use (aka possession), whereas it is not illegal to have sex.
You might want to rethink this one. I've had cocaine administered by a doctor before as part of draining my sinuses. (A dilute concentration of it, but cocaine, nonetheless.)

Quite a number of our drug laws actually regulate the use of drugs which are perfectly legal to possess, under the right circumstances. Say, if you are a doctor.

And until Lawrence was wrongly decided, the analogy to sex was quite a good match. Here in Idaho, the statutes still on the books make adultery a crime, and sex outside of marriage a crime. That was the law in most states until very recently. Sex was clearly legal inside of marriage--but pretty heavily regulated or prohibited outside of marriage. The laws were not very regularly enforced in my lifetime, but you don't have to go too terribly far back to find times when those laws were enforced.
12.10.2008 5:39pm
Clayton E. Cramer (mail) (www):

The fact that the 1st Amendment protects pornographic films should be a sign to us that laws against prostitution are constitutionally absurd.

There's no quandary here at all unless you assume, due to long-standing practice, that laws against prostitution are kosher. Why are we making that assumption? The very fact that it would be, as posters have pointed out, very easy to configure an act of prostitution as a "performance" should tip us off that maybe that assumption is flawed.
"Long-standing practice" is a pretty good sign that the Framers of the Constitution, of the Bill of Rights, and the 14th Amendment (through which all sorts of rights are imposed on the states) didn't consider laws against prostitution "absurd."

If you want to argue that prostitution laws are dumb, fine. But pretending that there is a Constitutional right is dishonest.
12.10.2008 5:41pm
loki13 (mail):
Clayton,

The problem that I have in discussions with individuals such as yourself is that a few problems invariably arise:

1. You are usually unaware of what the caselaw in a particular area is. You are clearly unaware of what the jurisprudence in the First Am. is and has been; this does not make you either stupid or evil, but makes conversations difficult. The jurisprudence has come into place because actual courts have, time and again, come into contact with real-life cases dealing with the issues that we have discussed, and attempted to come up with solutions that serve the Constitution and build upon the previous caselaw. While I may disagree with some (Turner I &II, for instance), it's helpful to know what I'm disagreeing with.

2. The usual criticism of lawyers and judges is that as historians, we make fine lawyers. I am always inherently skeptical of those who tell mee what the Framers meant or what was expected at the Founding due to their research; while I know you have done some fine work in the 2d Am. context, I don't find you to be an authority in this area. Moreover, the issue of the First is particularly fraught and I doubt we would have any true Original Exected Applications individualists out there- otherwise, we would all still be debating about whether the First Amendment was for prior restraints only, or could be applied for subsequent punishment (which was unresolved at the time of the ratification). I think the best thing to say is that the Framers were rightly skeptical of government's ability to sort out 'good' speech from 'bad' speech and wanted to ensure that government didn't get to decide what we heard.

3. You missed the point about content-neutral; government can have laws that tax the press, so long as it doesn't discriminate against one view-point (it does get a little more complicated now that there are multiple media to carry your message); this is the essence of content-neutral- all speakers are treated the same. A decibel ordinance surely impacts the freedom of speech, but, so long as it does so to all speakers equally, it would pass constitutional muster. A decibel ordinance that banned the playing of hip-hop music over 100 dB would be content-based. In the newspaper examples, theoretically a tax that kicked in at a certain point is content-neutral absent discriminatory intent or disparate impact.

Anyway, it's been entertaining. I respect your right to your normative opinions. I don't think you really are trying to understand the distinctions that are being drawn, or why this is a hard case, but under your framework, this wouldn't be a hard case. Unfortunately, under your framework, the First Amendment wouldn't make much sense or offer much protection (see, e.g., New York Times v. Sullivan) and we would live in a much different, and, sadly, less interesting America where you would likely not be expressing your opinions on this board.
12.10.2008 6:05pm
FlimFlamSam:
Clayton Cramer, as usual, hitting the nail squarely on the head.
12.10.2008 6:28pm
Not_Convinced:

If you want to argue that prostitution laws are dumb, fine. But pretending that there is a Constitutional right is dishonest.

You keep redefining the issues. No one said that there is a constitutional right to prostitution -- the discussion is whether a law that prohibits paying someone to engage in sex, has a constitutional problem when applied to a filmmaker who hires actors to engage in a sex act for the purpose of making a film. In plain usage, is not generally "prostitution" to hire actors to have sex in a movie. If you consider the laws against paying for sex are targeting "prostitution" then it makes sense that application to the filmmaker is not intended. Indeed, as I pointed out earlier, the law in this case lacked a "sexual gratification" element, that is part of prostitution laws in other venues. That element, also makes sense logically, considering both the filmmaker, and others who may pay third parties to engage in sex (medical research, anthropological research, instructional films, product testing facilities, etc.) that the average person would not consider "prostitution."

Analogies, while often helpful, ultimately fail here because sex is an intimate and necessary part of the human existence, and everyone has a right to engage in it (assuming willing adult partner(s)). It is often an integral part of human storytelling and the human spirit.
12.10.2008 7:15pm
KJJJ:

If you want to argue that prostitution laws are dumb, fine. But pretending that there is a Constitutional right is dishonest.


@ Clayton, pretending that there is *not* a constitutional right to create, distribute and possess sexually explicit movies is equally dishonest.
12.10.2008 7:30pm
Observer:
Murder is illegal...filming murder doesn't make it any more legal...

Prostitution is illegal...filming prostitution doesn't make it any more legal...

where's the flaw in this logic?

(actual murder, actual prostitution, not simulated)
12.10.2008 7:36pm
Not_Convinced:

where's the flaw in this logic?

Filming an illegal murder is not illegal itself. Paying someone to commit murder is.

The filmaker did not engage in prostitution. He did not pay someone to commit prostitution. He paid someone to engage in a legal act -- sex -- and filmed that act. That is not "prostitution" and the state tried to improperly apply an overly-broad law that targeted prostitution to something that was not prostitution, and was in fact an act of speech that had constitutional protection sufficient to trump the application of the law in this instance.
12.10.2008 7:48pm
PubliusFL:
Not_Convinced: Analogies, while often helpful, ultimately fail here because sex is an intimate and necessary part of the human existence, and everyone has a right to engage in it (assuming willing adult partner(s)). It is often an integral part of human storytelling and the human spirit.

Try telling a Rastafarian or a Peyotist that the sex-drugs analogy fails on that basis. :) Many cultures and religious groups have believed the same thing about various drugs that you say about sex. Why doesn't that make drug use as relevant to the 1st Amendment as sexual conduct is?
12.10.2008 7:59pm
ReaderY:
I would suggest that people who want to speed in new Hampshire bring along their camera phone and film themselves while doing it, and be sure to identify at least one friend willing to vouch to a court that he or she wants to see the video. Films involving fast cars are not only legal but a popular genre. So if the New Hampshire Supreme Court is correct, it can't be illegal to speed as long as it is being done for the purpose of being filmed, since making speeding-for-film illegal would foreclose a class of expression protected by the first amendment.

And of course there's no difference, so far as the First Amendment is concerned, between speech with wide and narrow dissemination.
12.10.2008 8:43pm
ARCraig (mail):
This paradox seems to highlight the insanity of banning consensual interactions like this more than anything else.
12.10.2008 9:04pm
ARCraig (mail):
ReaderY-

There are no speed limits on private property.
12.10.2008 9:05pm
David Welker (www):
I appreciate Loki's point of view, but I think he is sort of being a weasle here:


Behind every complex problem lies a simple, easy-to-understand, wrong answer.


This to me is just Loki's way of admitting that there really is no principled reason to reject Cramer's point of view here.

You are wrong Cramer, Loki just can't explain why in a very clear, easy to understand manner. But believe me, your point of view, if adopted, would result in the end of the First Amendment as we know it! (to quote Loki: "we would live in a much different, and, sadly, less interesting America where you would likely not be expressing your opinions on this board." The horror! The horror! The sky would fall if your view were to prevail!

I think the First Amendment could be interpreted, in a nuanced manner, to not protect paying money for sex (whether to make pornography or not) and the law would be just as coherent as it under Loki's view of how it should be interpreted. And we would still have plenty of free expression in America.

That is not to say I necessarily buy Clayton Cramer's approach to Constitutional interpretation as a general matter. But I think Loki is being a tad bit too dramatic here for my tastes.
12.10.2008 9:25pm
David Welker (www):

This paradox seems to highlight the insanity of banning consensual interactions like this more than anything else.


Yes, we must end child labor laws immediately!

I think only a libertarian would draw that particular lesson from this debate. And you know why they would draw that lesson? Because that is the very same lesson they are inclined to draw from any debate. =)
12.10.2008 9:28pm
David Welker (www):

There are no speed limits on private property.


And there also are not any necessarily suitable roads for the scene you want to film on private property either.
12.10.2008 9:30pm
ARCraig (mail):

And there also are not any necessarily suitable roads for the scene you want to film on private property either.



Sure there are. Where do you all those car commercials are filmed?

I see the point he was making, I just think that's a bad example.




Yes, we must end child labor laws immediately!



Sounds fine to me, though a lot of people insert the caveat "consenting adults", which is more in tune with the general jurisprudence that minors can't consent to anything of consequence.



I think only a libertarian would draw that particular lesson from this debate. And you know why they would draw that lesson? Because that is the very same lesson they are inclined to draw from any debate. =)


Hey, it's not my fault we're right at all the time. ;^p
12.10.2008 9:57pm
loki13 (mail):
David Welker,

I think you misunderstand my point. Under our current doctrines, the issue of a content-neutral law that happens to affect First Amendment rights is a difficult one with a great amount of caselaw behind it. As I wrote above, the prostitution/pornography distinction (in terms of paying for the performance, not the subsequent distribution) is a close one, and not all states are in accord, and the states that have found protection have done so in different ways, and often by construing the prostituion statute so it doesn't conflict with filming.

My comment directed at Clayton was directed at his general take on First Amedment jurisprudence. Under his view, for example, the following would occur (of the top of my head):

1. The state could, possibly, punish you for any type of speech it wants, so long as it doesn't keep you from doing it ahead of time (prior restraint). Subject to due process constraints, nothing would stop, oh, the Obama Administration for criticizing the government. Truth would not be a defense.

2. States, for that matter, could prohibit truth as a defense in defamation (libel/slander). In old common law, truth was not a defense (the greater the truth, the greater the libel!). While Hamilton and others argued for it after ratification under state law, there was no constitutional bar.

3. Heck, in addition to that, states could make defamation subject to strict liability.

4. Licensing boards? Post office censoring the mail? Why not??!! Admittedly, they are a prior restraint, but allowed under original expected application.

I could keep going on, but I think you get the idea. Our world would be vastly different without these protections. I think that Clayton may not have fully thought through his First Amendment philosophy, other than to believe it goes to far.


This to me is just Loki's way of admitting that there really is no principled reason to reject Cramer's point of view here.


No, this meant that I have spent way too much time on this thread, and I have already gone through the principles, supra. I have spent a great deal of time on this already. I admit that saying something is hard, and nuanced, and has a ton of caselaw and even conflicting history isn't as simple as "My way is right because I know what the Framers believed" but you might get a little farther in a real court.
12.10.2008 10:24pm
loki13 (mail):
correction:

Subject to due process constraints, nothing would stop, oh, the Obama Administration for criticizing the government.

should be:

Subject to due process constraints, nothing would stop, oh, the Obama Administration frm criminalizing the criticism of the government.
12.10.2008 10:40pm
John D (mail):
"some dude" sailed in with this:

"Pornography" means "images of prostitutes." Case closed!

Of course he's wrong.

Everyone else wisely ignored it, but I'd like to use it as a handy reminder: the roots of words aren't always a guide to their actual meanings.

If it's dreary, it's not really covered in blood.

You don't get malaria from "bad air."

Homophobia doesn't mean that you're afraid of things that are the same, or even that you're afraid of gay people.

And onward to pornography.

Literally, it was the writing of prostitutes, specifically, their advertisements (Come see Sabina Felix for a truly happy ending!) Then this was generalized to mean "sexual explicit writings, intended to titillate."

Words do stuff like this. Please remember that as you use them.
12.10.2008 11:00pm
David Welker (www):

No, this meant that I have spent way too much time on this thread, and I have already gone through the principles, supra. I have spent a great deal of time on this already. I admit that saying something is hard, and nuanced, and has a ton of caselaw and even conflicting history isn't as simple as "My way is right because I know what the Framers believed" but you might get a little farther in a real court.


Fair enough.

And maybe you have a point about the problems with Clayton's approach as a general matter. Of course, I think the ultimate protections we have as a society ultimately have to be vindicated through the democratic process (especially as Supreme Court nominees are selected by politically elected and accountable leaders) and we ultimately cannot rely on courts to totally protect electoral minorities from electoral majorities. I think history bears me out on that one.

Moving away from generalities, with respect to the issue of whether pornography that involved payment could be Constitutionally banned as a form of prostitution, I haven't been convinced thus far that your view is required (as oppossed to possible) by the arguments you have advanced thus far.

Overall though, I think you are right that I was misinterpreting you. Your statements were directed towards Cramer's judicial philosophy in general, not merely its application to this particular question.

I still suspect that your statement that we would not be able to have this discussion on this board without expansive court protection of speech is probably incorrect though. I think ultimately speech would enjoy some protection through the political process even if it had no Constitutional protections whatsoever. (Not that I am advocating that view in any way, shape, or form. I am just pointing out that the consequences of Cramer's view are not perhaps as dire as you initially suggested -- assuming your applications of his point of view in the First Amendment context is completely correct.)
12.11.2008 1:11am
David Welker (www):
Loki,

One more point.

I think to the extent that you are talking about the law in the sense of predicting what courts would do and Cramer is talking about the law in a more normative manner -- not predicting what they should do but talking about what they ought to do regardless of what they do now, you may simply be talking past one another.
12.11.2008 1:13am
David Schwartz (mail):
Clayton Cramer:
Agreed. And that's the reason that a law that prohibits paying someone for sex (the law against prostitution) should still apply if you are paying someone to have sex in a movie. The prostitution law is purpose-neutral. It doesn't matter if you are hiring a woman to have sex for your own gratification, or to make a movie, or because you like the sensation of power that comes from paying for sex. The law makes it illegal, and it doesn't matter why.
I don't believe it is purpose-neutral. I believe it was specifically crafted this way to ensure it covers the making of legal pornography.

Suppose I hate Christians. I want to stop them from performing communion. So I construct a purpose-neutral food service law -- you cannot distribute wafers, wine, but not cheese in the same ceremony.

The point it, the actual effect of the law is to seriously burden a significant amount of constitutionally-protected activity. The law could be tailored to exempt the protected activity, but does not.

If you cannot prohibit X, you cannot prohibit X+Y. The lesser does not include the greater.

Constitutional rights carve out exceptions to laws of general applicability.
12.11.2008 3:08am
PubliusFL:
David Schwartz: The point it, the actual effect of the law is to seriously burden a significant amount of constitutionally-protected activity. The law could be tailored to exempt the protected activity, but does not.

Which again assumes that depicting unsimulated sexual conduct for pay is a constitutionally-protected activity, in a way that, say, procuring marijuana to depict unsimulated marijuana use is not (at least in a state where sale of marijuana is criminal but personal possession and use are not).
12.11.2008 8:53am
Jon Rowe (mail) (www):
What if the porn producers are paying married husbands and wives to have sex. Is it still prostitution then? There have been some notable instances of porn stars falling in love, marrying and only doing sex scenes with one another. Lots of porn stars are married and usually they are having sex with someone who is not their spouse however.
12.11.2008 10:34am
loki13 (mail):
PubliusFL,

I really haven't given this any more thought than I have above, but I don't think your distinction with drug laws make sense.

In California, where marijuana is legal for most purposes (complain of back pain, anxiety, etc.), you could film actors that have procured marijuana on their own. Just as you could always film non-actors smoking marijuana. I think the distinction you make is a fallacious one- you are looking for situations where the production company wants to pay to get the actors drugs for a role (insert- but that's what the do in Hollywood!). Anyway, we have plenty of TV and movies that feature drugs, some prominently (Weeds, anyone?). I think that is because of two factors:
1. Drugs are very easy to fake.
2. You don't want actors wasted on set. Acting requires multiple, multiple, multiple takes- and if you took a toke for every take, well, it coould get ugly. Beside- it's ACTING!

So, for 'realist' or documentary productions, the producers aren't paying for the drugs, and for other productions they use fake drugs. It clearly hasn't had a chilling effect -- from Cheech and Chong to Weeds to Pineapple Express (or whatever) we've had drug movies; heck go watch Scarface. The goverment has a *compelling/significant/substantial* reason, and it is a content-neutral law.

So if the pronography/prostitution is a tough call (and think of the amount of free speech -- or, if you're Clayton, unprotected smut -- that would be wiped out if we removed this protection), then this certainly isn't.
12.11.2008 10:45am
loki13 (mail):
PubliusFL,

I really haven't given this any more thought than I have above, but I don't think your distinction with drug laws make sense.

In California, where marijuana is legal for most purposes (complain of back pain, anxiety, etc.), you could film actors that have procured marijuana on their own. Just as you could always film non-actors smoking marijuana. I think the distinction you make is a fallacious one- you are looking for situations where the production company wants to pay to get the actors drugs for a role (insert- but that's what the do in Hollywood!). Anyway, we have plenty of TV and movies that feature drugs, some prominently (Weeds, anyone?). I think that is because of two factors:
1. Drugs are very easy to fake.
2. You don't want actors wasted on set. Acting requires multiple, multiple, multiple takes- and if you took a toke for every take, well, it coould get ugly. Beside- it's ACTING!

So, for 'realist' or documentary productions, the producers aren't paying for the drugs, and for other productions they use fake drugs. It clearly hasn't had a chilling effect -- from Cheech and Chong to Weeds to Pineapple Express (or whatever) we've had drug movies; heck go watch Scarface. The goverment has a *compelling/significant/substantial* reason, and it is a content-neutral law.

So if the pronography/prostitution is a tough call (and think of the amount of free speech -- or, if you're Clayton, unprotected smut -- that would be wiped out if we removed this protection), then this certainly isn't.
12.11.2008 10:45am
loki13 (mail):
David Welker,


I still suspect that your statement that we would not be able to have this discussion on this board without expansive court protection of speech is probably incorrect though. I think ultimately speech would enjoy some protection through the political process even if it had no Constitutional protections whatsoever.


It's hard to argue a counter-factual, but I know this-

Would speech enjoy some protection through the political process without the FA? Yes.

Would it be less than what we enjoy today? Certainly.

Would we have this free-wheeling conversation on teh intertubez?

I doubt it. People today are so accustomed to our free speech rights they find it hard to imagine a world without it. In fact, I would even argue that the Western World (democratic), in general, has been heavily influenced by American FA norms. I think that too many people take them for granted; well, of course if we didn't have them, we'd have voted for them at some point! I think that's incorrect.
12.11.2008 10:56am
David Schwartz (mail):
PubliusFL
Which again assumes that depicting unsimulated sexual conduct for pay is a constitutionally-protected activity, in a way that, say, procuring marijuana to depict unsimulated marijuana use is not (at least in a state where sale of marijuana is criminal but personal possession and use are not).
You can work almost any constitutional rights question this way, arguing that the right involved is narrow to the specific facts and finding no such right. I mean, why not say "depicting unsimulated sexual conduct for pay in New Hampshire"?

How would you feel about a law prohibiting paying someone to speak against the auto bailout? Is there a right to pay someone to speak against a bailout?
12.11.2008 12:37pm

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