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.