How is porn *legally* not prostitution?

[dolo amber]

I'm not making a judgment call here, I don't much care what consenting adults do. But they're essentially paying people to have sex, no? Is it because the industry is paying people to have sex with each other and not to have sex with them? It's confusing.:shrug:

*Mods, clearly this is a sex thread. But it's also a legit question. I'll defer to your judgment. :hi:

[Deja Q]

1. Paying to watch people do the oingie-boingie is not the same as

people paying them to do it directly with them...

Ergo, it's not illegal.

Just as how it's okay top watch people break into a bank, rather than to do it with them for real! :D

See, those people doing the same thing on screen for 90 minutes without getting bored or priapism is anything BUT real... they're just actors. Some of them good ones... :D

[elshiva]

3. That makes sense. Thanks.

[Deja Q]

6. There's a first time for everything in my life!

:bounce:
:D

[dolo amber]

5. I'm not talking about watching, sillyhead

I mean the industry as a whole. The movie companies. How can they pay people to have sex and it not be prostitution? :shrug:

[Deja Q]

8. Again, it's who they do it with.

I could pay you to be in my movie. You're playing a chick dating this guy. I'm paying the guy too. The movie has a sex scene. A nice 90 minute one.

Now if I paid them to get it on with me, THAT is prostitution. Those two actors are merely playing roles (or role playing) with each other...

[JVS]

20. IIRC there are people who hire others to be in porn with them

If not, it can easily be gotten around by having a friend be the "producer"

[LisaL]

25. I guess all one has to do for prostitution to be legal

is to film doing it with a hooker? It makes no sense whatsoever for porn to be legal, but for prostitution to be not.

[SouthoftheBorderPaul]

32. What if you're the producer AND the star?

Then you're paying someone to have sex with you but you're filming it. How do you pull that off without getting arrested? You know....for future reference.

[pitohui]

47. mostly you have to do it in certain counties

there is a theoretical risk of arrest in most areas if you're filming a porn film, paying people to have sex w. ea. other is indeed against most state or local law

however, it ain't a federal law

all states have the right to make their own laws in this area and either state of california itself or many of its counties (i'm not sure which) wanted to encourage the film industry by making this exception

that said, i do know a dude who used to make porn films in new orleans and even appeared in a few and he was never arrested, it really isn't something cops are going to spend a lot of time on if you do it quietly, whores are often arrested not for being whores but because they are being a public nuisance

prostitution itself can be legal as it is in certain nevada counties, it's pretty much a local issue

[JVS]

17. But you are paying them to do the oingie-boingie either way

Look at it this way: if I hire a hooker and happen to tape the act, does that make me a pornographer instead of a whoremonger?

[LisaL]

23. But they are having sex for money. Somebody is paying them

to have sex. If they weren't paid, they would not do it. So, how come porn is legal but prostitution is not? I do not get it.

[GirlinContempt]

28. Free Speech

Do you get that?

[JanMichael]

37. But not for the prostitute????

Just the chick getting fucked in the ass on film?

This is fucking ridiculous.

[GirlinContempt]

39. It is what it is.

[LisaL]

41. No, I don't.

Porn actress having sex for money-free speech?
A hooker having sex for money-not free speech?
So, no, I do not get that.

[LoZoccolo]

31. Sometimes the producer of the video is one of the porn stars too.

How does that figure in this distinction?

[JanMichael]

35. Holy shit that's a dense response.

How about the solicitation to fuck someone, Ie. get paid, on video?

Duh?

[GOPisEvil]

2. Because technically the crime is soliciting. The crime is in the offer and

acceptance of sex for money as I understand things.

Of course I could be full of shit. :D

[LisaL]

24. Then what does it make a porn producer?

[JanMichael]

38. A "John"

No?

[LisaL]

42. Pimping is illegal, no?

[Reverend_Smitty]

4. I donno

Porn stars pay taxes and prostitutes don't :shrug:

[LisaL]

43. If prostitution was legal, prostitutes would be paying taxes too.

[politicat]

54. Funny enough, lots of prostitutes do pay taxes.

As a self-employed entertainer.

My mother used to be an accountant, and had several clients who were in the business.

It's better to get in trouble with the local cops and serve the local time than to get in trouble with the feds.

[pitohui]

56. hmmm

i tend to doubt this statement seriously

t's better to get in trouble with the local cops and serve the local time than to get in trouble with the feds.

the programs in federal prison are much better than the programs or should i say the lack of programs and medical care in local jails

there are indeed whores who pay taxes (a tiny minority) but i think if that is the logic it's shaky

[politicat]

61. That was the rationale given.

Mom didn't inquire too closely. She was more than happy to do their books and taxes, but didn't want to get in deeper. (On conjecture, I think the reason to deal with the local cops is that prostitution in that area was a misdemeanor, with little or no jail time, and the more exceptional ones weren't likely to get picked up for anything - "escort" rather than street walking - while tax evasion is a nasty rap that can ruin your chances of ever doing anything else. Misdemeanors don't have to be reported to future employers, and this was before the sex offender reporting laws.)

[democracyindanger]

7. Interesting question

Here's an interesting findlaw column that uses a NY judge's decision to explore the legal differences. Put simply, pornography receives some 1st amendment protection because it can be considered a form of expression, while prostitution is a business transaction.

http://writ.news.findlaw.com/colb/20050810.html

[dolo amber]

13. This makes sense

Well, sorta...I mean, I can understand it. It doesn't really make *sense*. ;)

[GirlinContempt]

49. That is a great link that more people in this thread should read

[sundog]

9. BAN TEH PORNO!!!!11

[asthmaticeog]

10. You-know-who in 5... 4... 3... 2...

[dolo amber]

11. Voldemort?

:o

[Deja Q]

14. More like 'beat the porno; if you ask me, that ye olde picture is filthy!

:wow:

[sundog]

15. you mean filthye

[JVS]

21. you mean schyten

[flvegan]

12. Because it's one entity paying 2 other entities to

have sex with each other (or, maybe several other entities to have sex with...well, whatever, you get the point). This is in opposition to one entity directly paying another to have sex with the first entity.

Besides, if porn wasn't legal, the mob would get REALLY pissed...and, well, you know...

[Deja Q]

18. Well, obviously somebody gets the point...

:spray: :rofl:

[Mayberry Machiavelli]

22. Hypno, you touch HEyHEy THERE, HEyHEy, you touch Hypno HERE.

I won't give either of you money, so it'll all be legal!

[HEyHEY]

29. ooo, when's the pizza man arrive?

[hunter]

52. Hello. Did you order a pizza?

I've copied this from one of my posts in Religion/Theology. (We have fun down there.)

Back when I was in college I lived in a pretty wild college town, and one of the many jobs I took was delivering pizzas.

One night I rang the doorbell of this apartment. The door opened, and clouds of marijuana smoke came billowing out, and standing in front of me was this gorgeous woman wearing a sheer blue and deeply open blouse. But I'm not noticing the blouse so much as what's underneath. The apartment is full of gorgeous women, and they are all very stoned and very drunk.

"Ummm, the woman says, we don't have enough money, but..." and she reaches down seductively... and I'm thinking... Well actually I'm not thinking, not upstairs anyways, and it's a miracle I didn't drop the pizzas when she touched me.

Noticing my terror and confusion, one of the other women in the apartment flashes me (okay, I only saw her bra) and then they all start hooting and laughing at me.

"But I still have pizzas to deliver," I squeak like a little trapped animal.

"It won't take long," the young woman says.

In a panic I look around the room for someone, anyone, to save me. I'm suffering complete and terrible brain freeze.

"Um, yes, it will," I squeak.

So they all start laughing and hooting even more, and then one of the women comes over to me, hands me money for the pizzas, and I leave that place as quickly as I can, my virginity still intact.

For two years in college I studied television production. I was most interested in the technical side of it, which was pretty frustrating because there were only one or two women in each of the technical classes and none of them were interested in me. So I later changed my major to Biology, where the women outnumbered the men, and some of the women were interested in me.

While I was still dreaming of a job in the television industry, I interviewed a few times in the San Fernando Valley, and some of those were porn shops. I was a very naive young man, and usually I wouldn't figure this out until I drove out to the interview -- and one time I didn't figure it out until a prospective boss walked me out to the set during taping. You could have picked my jaw up off the floor.

I never did work on any porn, but I did some other work for Larry Flynt a few times, more than twenty years ago... thus I am tainted. Some of my classmates from high school and college did go to work in the porn industry, a few in front of the camera, but most of them don't anymore. A couple of them later became "born again" crusaders against porn, and I'll occasionally have some irritating exchanges with them because I often think they don't know what they are doing and make certain bad situations worse. Many born again crusaders find it impossible not to judge others, however "open" they might claim their hearts to be.

In my mind there is no distinct line between prostitution and pornography production, and I don't think such distinctions are important. In my experience those who would draw the most restrictive boundries are the most likely to abuse those boundries, and to manipulate other people by fear.

[El Fuego]

53. But if the first party had a vested financial interest

in a porn movie in which the first and second parties performed, then technically the first party would be paying the second party for sex. Then it would be prostitution! :P

[flvegan]

55. The first party, in that scenario

would be more likened to a "pimp" that paid a man and a woman to have sex, and profited monetarily from it. If that's also the case, then the end consumer would be "paying for sex" also, as they are ultimately the ones paying the first party, anyway.

[El Fuego]

58. No, in my scenario the first party is doin' it

Said first party is paying said second party to have sex with HIM vis-a-vis contractual fees paid to said second party to appear in said film and do it like a hot sweaty monkey.

[HEyHEY]

16. You're on sacred turf

[zone]

26. Sounds like a great title...

...for a girl-on-girl movie to me.

[jpgray]

36. ...

:thumbsup:

Welcome to DU. :D

[DS1]

19. It's easier to tax, and is a HUGE THROBBING source of income for CA

:D

[LisaL]

27. Yea, there is your answer. It's making someone tons of money.

Because as far as I can tell, whores and porn actors are having sex for money. Either both should be legal, or both should be illegal.
There is no difference.

[Ariana Celeste]

30. I guess it kind of is, related anyways

I think prostitution should be legal, though... so I don't see them being related as a problem. Such a serious post for the lounge, lol. :hi:

[hickman1937]

33. Doesn't porn fall under the first amendment?

Prostitution has always been illegal because women are essentially evil and need to be guarded by men.

[GirlinContempt]

34. Yes, porn is covered by the first amendment

[LisaL]

40. So, what is the difference between a hooker and a porn

actress? Both are "expressing themselves" for money.

[GirlinContempt]

44. Ask a judge

[petronius]

45. I've always thought someone should open a do-it-yourself porn studio

Kind of like those silly music video things you can make in the mall. Each room would have a video camera, part of the fee would cover a blank tape, and the customer keeps the video at the end of the session. It's not prostitution, it's legitimate pornography being produce one copy at a time...

The brothel could even have a distribution option for those 'independent film-makers' who want wider exposure.

[pitohui]

48. such things exist, i don't think they're especially popular

video cams are cheap, you can make your own tape at home w. a lot less hassle

i've heard of that option being available at some swing clubs tho but again not sure of the popularity, i sure wouldn't swing at a place where people had cameras, would you?

[petronius]

51. But you have to supply your own co-star at home, right?

I'm thinking of a way to hire a prostitute-I-mean-actress while still being covered by the First Amendment. But, I guess one could try just setting up the camera at home, hiring someone, and claiming it was art. The problem there would be that you would get busted at the hiring stage, and your artisitc defense wouldn't be obvious...

[mongo]

46. It's only legal to make porn in California

In every other state in the union, you can be charged with soliciting, pandering prostitution, etc.

The Ca SC found that adult entertainment was not prostitution because the participants are "performing an actors role" - which they are.

If you've ever been behind the scenes of a porn set, it is much harder work than you would think.

[underpants]

50. IT'S ART!!!!!!!

[LisaL]

64. And you think a prostitute is not acting?

I mean, one can say she is acting too.

[mongo]

68. LOL!

You do make a valid point... I was just stating my understanding of the law.

[jberryhill]

57. Because it is "Acting"

...that's what a prosecutor told me when I asked him why they don't go after it that way.

[LisaL]

63. Then when someone is arrested for soliciting prostitution,

he should say he and the whore were planning on putting on a play?

[Commie Pinko Dirtbag]

59. The people who are paying are not the people who are having sex. -nt

[LisaL]

67. Porn actors are not having sex for free.

Why aren't they arrested for hooking?

[aclog]

60. OK, I'll relate this thought

if i were to pick up a prostitute (I said IF) and paid her to let me take pics of us in the act on my camera phone, is that illegal?

I'm talking technically hypothetically, since I doubt the cop would be sympathetic if one were to get caught

[LisaL]

62. Yes, that would be illegal, and you would be documenting

yourself committing a crime. On the other hand, porn is legal. It doesn't make no sense whatsoever.

[GirlinContempt]

65. *le sigh*

http://writ.news.findlaw.com/colb/20050810.html

"It doesn't make no sense whatsoever." So you're saying it makes sense.

[philosophie_en_rose]

69. So prostitutes can't make films?

I'm not commenting on prostitution or porn, but it seems silly to distinguish the law based on how someone is categorized before having sex.

If a porn producer wants to make a porn about prostitutes, it's okay?

But if a prostitute wants to make a porn film, it's not?

:shrug:

[aclog]

78. no the tang would be free

I'd just pay her for the pics

*wink* *wink*

[Xithras]

71. Heh, that depends on the point of the project.

If you did that simply because you wanted to have sex and keep a record of it for your future amusement and masturbation, then yes it would be solicitation. Your purpose was to pay for sex, and the fact that you documented it doesn't change that.

Now, if you were making a porno video for business purposes, where the intent wasn't physical enjoyment but profit, that would be legal (yeah, screwed up, I know). The idea there is that you AREN'T hiring the prostitute to have sex with you, you're hiring her to play a part in a movie. The sex is incidental from a legal standpoint.

Before everyone grabs their videocameras and tries to use this as a way to escape prosecution for solicitation, understand that it's been tried before. The FIRST thing the police are going to ask to see are your distribution agreements and other material PROVING that you had a plan AND THE RESOURCES to not only make the movie, but market it and sell it. If you don't have the proof that you intend to do that, you're probably going to jail.

[entanglement]

66. I don't see any *real* difference

n/t

[Xithras]

70. Legally, no. Most of the people here actually missed the legal difference.

Here's the thing. The First Amendment gurantees the right of a free press, and the Supremes have defined that to mean ANY print, photo, or video publication. Why? Because porn images or videos are actually just repeating back to the viewer an act that occurred some time ago. It's photographic "reporting" of the actions of one, two, or more people. Photographs don't have sex, people have sex. The photographs, from a legal standpoint, are simply a press record of their sexual acts and pretty clearly deserve legal protection under the first amendment.

Now, the actions of the people who actually have sex in those videos and photos are a slightly different story. If the photos are of one person, no sexual contact has taken place, so it is ALWAYS legal for the actor/model to participate. If you have two or more people involved, the situation gets a little murkier. It IS illegal to be paid for sex, even for movies, in some states. In most states, however, there's a nice loophole that the porn industry uses. Technically, according to the porn producers, they are NOT paying the actors and models to have sex. They are paying them a WAGE to be ACTORS in a MOVIE. From a legal standpoint, they're being paid to act, not boink. The fact that boinking is part of the script isn't usually sufficient to qualify as prostitution, since the deletion of those scenes doesn't prevent the prodution of the movie.

Like I said, it's a loophole. Still, you won't find porn companies making movies in some fundie dominated down in rural Kentucky, because they know that a zealot cop might call them on it and toss them in jail anyway. This is why porn production is usually limited to big cities, where the cops have better things to do than argue the finer points and gray areas of contract law and the definition of prostitution.

[mongo]

74. Most states?

It's only legal to make porn in California, although a court case is working it's way through NY.

[GirlinContempt]

75. What about Nevada?

[mongo]

76. Never been tested in NV

California is the only state with case law (People v. Freeman) that tends to support porn movies not being subject to prostitution related charges such as pandering against the producer. But it rests only on the fine line, that it was not obscene. There is no other case precedent protection in other states although the case is helpful even if not setting a precedent in other states.

Stevi Secret was successful in Las Vegas, where a judge tossed out a botched case of pandering and the Freeman case was cited but it never went to court to be fully tested in Nevada. See her interesting extensive report on her 1995 fight of pandering charges and what the police tried to do to her is at http://www.stevisecret.com/library/sample/1095vx.htm

California is the only place that has strong case law in the Freeman case, yet it leaves wide open the opportunity for a prosecutor to try and attack a porn film on obscenity charges. There is no clear definition of what obscenity is - it is based on local "community standards." Also more conservative states may not follow the Freeman case. While other cases in other states have referred to it, it is not a precedent in any other state, nor is Stevi's Las Vegas experience, since fortunately a judge tossed the case, but there was no trial or decision to establish a precedent.

In the Freeman Case, the California Supreme Court reversed the pandering conviction of a film producer who paid actors to copulate on screen. The defendant in Freeman was not charged with obscenity. The court observed that "the self-evident purpose of the prosecuting authority in bringing ... charges was to prevent profiteering in pornography without the necessity of proving obscenity." The court concluded (1) that the state must prove the film lacked First Amendment protection in order to punish the defendant for producing it; (2) that the state could only establish that the film lacked First Amendment protection by proving it obscene; and (3) that this film had not been proved--and thus could not be assumed--obscene.


http://www.sexwork.com/legal/pornorprostitution.htmlhttp://www.sexwork.com/legal/pornorprostitution.html

[Xithras]

77. Yes, most states.

It's only legal to make porn in California, but it's only illegal to make porn in a handful of states that have passed specific laws or provisions against it. In most of the country, it's a legal grey area and prosecutors are reluctant to tackle it. Prosecutors know that any attempt to prosecute it will end up becoming a major federal court case, so porn production is ignored unless they try to shoot in a public place.

[redqueen]

72. I love the way you think.

:hi:

[gmoney]

73. Well, technically they are being paid to act/appear in the film...

what they do in the film is "acting" like a pizza delivery guy and/or a lonely sorority girl. At least once upon a time, it was a big reason adult films bothered to have stories... because it's justified in the script for these two characters to have sex. I think that distinction pretty much went away with the advent of home video, because the "community standards" argument became unenforceable against the producers. Videos get around this with disclaimers at the beginning of programs advising the viewer that what they are about to see may not be legal to view in all areas because it may violate the local community standards.

I also imagine the fact that it is overt, with documentation of participants' names/ages, release forms, contracts, payments, all essentially on file for public or law enforcement review, lends it enough legitimacy. And the fact that there's no clear line between "Eyes Wide Shut" and "Last Tango in Paris" and "Showgirls" and "Girls Gone Wild" and "Lesbian Cheerleader Make-out Stall."


SMUT (By Tom Leherer)

Smut
Give me smut and nothing but
A dirty novel I can't shut
If it's uncut
And unsubt-
Tle

I've never quibbled if it was ribald
I would devour where others merely nibbled
As the judge remarked the day that he
Acquitted my Aunt Hortense
"To be smut it must be ut-
Terly without redeeming social importance"

Por-
Nographic pictures I adore
Indecent magazines galore
I like them more
If they're hard core

(Spoken) Bring on the obscene movies, murals, postcards, neckties, samplers, stained-glass windows, tattoos, anything! More, more, I'm still not satisfied!

Stories of tortures
Used by debauchers
Lurid, licentious, and vile
Make me smile
Novels that pander
To my taste for candor
Give me a pleasure sublime
Let's face it, I love slime

All books can be indecent books
Though recent books are bolder
For filth, I'm glad to say, is in
The mind of the beholder
When correctly viewed
Everything is lewd
I could tell you things about Peter Pan
And the Wizard of Oz, there's a dirty old man

I thrill
To any book like Fanny Hill
And I suppose I always will
If it is swill
And really fil-
Thy

Who needs a hobby like tennis or philately
I've got a hobby, rereading Lady Chatterley
But now they're trying to take it all
Away from us unless
We take a stand, and hand in hand
We fight for freedom of the press
In other words

Smut, I love it
Ah, the adventures of a slut
Oh, I'm a market they can't glut
I don't know what
Compares with smut
(Hip hip hooray Let's hear it for the Supreme Court)
Don't let them take it away

[SOteric]

79. Think of it like this:

It's not legal to commit murder. It's quite legal to write about gruesome murders, just ask Stephen King. It's legal to produce and act in films about murder. What makes it legal is that no one is actually killed; and of course there's that business of a constitutional right to freedom of the press, plus a long tradition of 'whodunnit' literature in society.

With regard to sex, -most forms of having sex are quite legal, but paying for it is usually not. It is, however, legal to write about sex and even to write about paying for it. It's also legal for adults to produce and appear in films about sex or even prostitution in a good many places. What makes it legal is at least the illusion of that constitutional right to freedom of the press. If you're paying these people to act, or to model, or to write tittilating things, and they chose to engage in physicially sensual interpretations, that's theoretically and legally different than plunking down a c-note to Miss "Ida Ho" and saying 'blow me.' Ida isn't being paid as a thespian, a model or a writer, she's being paid for a blow job.