Porn movies edited to include others’ images without their permission:

In response to my post yesterday about software that can easily edit movies (including porn movies) to include images of celebrities or the editor’s acquaintances, several people argued that what people do in their own bedrooms should be none of the government’s business. Whether this is still so when it uses others’ images, in a pornographic context, is an interesting question; one can certainly make arguments on both sides.

But let me add a supplemental question, which I’m also going to include in my textbook supplement (I love being able to beta test my problems using the blog):

If you don’t think that the law [banning distribution of the software] should be upheld, what about laws that (1) prohibit the use of the software to make such pornographic movies without the photographed person’s consent, (2) prohibit the noncommercial distribution of the movies, whether to a small group of friends or on the Internet, or (3) prohibit the commercial distribituion of the movies? (Don’t limit yourself to considering whether such laws are constitutional under existing obscenity doctrine. Consider also whether you think there should be an obscenity exception at all, and whether you think it should be broader or narrower than it now is.)

The people who support people’s rights to do what they please in their own bedrooms will almost certainly oppose law 1 as well as the law banning distribution of the software. But what about laws 2 and 3? If you believe that there should be no obscenity exception to the First Amendment (set aside the child pornography exception, which generally applies to movies made using real children), would you likewise reject laws 2 and 3? Or do you think that laws 2 and 3 are constitutional, because the law ought to protect people from having their images used this way without their authorization?

Assume that the movies are properly labeled to make clear that the people who are depicted did not agree to the depiction — that eliminates any possible defamation claim (“I should get damages because the movie falsely suggests that I’ve agreed to star in a pornographic movie”).