The Thin Line Between Pornography and Prostitution

While filming pornography might seem different than prostitution, the difference between the two can be illusory when money changes hands. Eugene Volokh explains in analyzing a recent New Hampshire case:

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.

As I am often asked this question by students, I generally agree with Eugene. The free speech involved is in the filming and production of the video. The crime of prostitution stems from the exchange of money for the sexual services therein. Simply because pornography is normally produced for money does not mean that payment system is also protected under the First Amendment. The reverse case illustrates the difficulty with the court's position. If a man hires a female prostitute and films the encounter, is he free from prosecution? My position obviously creates difficulties for the pornography industry, but insofar as prostitution laws do not have statutory exceptions for the pornography industry, I believe the New Hampshire court's argument is not particularly persuasive. 

Comments

[Daniel]

I haven't read the opinion but I am not persuaded by your logic either Corey. The production of speech and the speech itself are tied together. It's like saying the government can't outlaw your speech but can make it illegal to use your vocal cords to produce words. That makes no sense. To my mind, the difference is intent. If the goal of the production is to create speech, it's protected. If the goal of the production is merely a technique or tool for sexual arousal (some people get excitement off of being filmed) or as a means to avoid the law, then it is not protected.

[Daniel]

LOL. I went and clicked on the link to TVC and there in the second comment is my exact analogy. Oh well.

[Corey Rayburn Yung]

Daniel,

Following analogies is always a bit dangerous in this area, but even with yours I think distinctions can be drawn. The vocal chords of pornography are probably the cameras and production equipment. Pornography cannot be filmed without those things. On the other hand, paying the actors is not an essential element of pornography. In the same way, legal sex becomes illegal pornography when money changes hands.

[Daniel]

Corey:

If you continue with the analogy, then money is like breath. While it's true you can speak without breathing, it's difficult and uncomfortable and it sounds terrible. In the same way, you can make commercial porn without money, but the product isn't going to be very good.

For me, money is just a red herring. It's not the process that makes the difference but the intent. Deceptive advertising laws have been upheld because there isn't a constitutional right to deceive people. And deception by it's nature is not foremost a process but an intention.

"If a man hires a female prostitute and films the encounter, is he free from prosecution?" It depends on what his intent is. The difference between prostitution and porn is the intent of the actor. With prostitution, there is no intent to speak or express oneself in a public forum; the only intent is the sex itself. With commercial porn, the sex itself is merely a method of speech.

[zak822]

I would pose the question differently, and ask where was the act of prostitution.

As commonly thought of, Party A pays Party B for sex-that is, A has sex of some form with B for the gratification of A.

Paying two people to let you film them having sex doesn't fit this model. Watching the people have sex did not obviously provide sexual gratification for the party that paid, which seems to be the essense of prostitution.

Just sayin'...