Sexually explicit dancing and movies, prostitution laws and the First Amendment

Earl Maltz emaltz at
Mon Oct 19 10:28:36 PDT 2009

How about this hypothetical:

Suppose I call a bunch of media outlets and say:  "I think 
prostitution laws are immoral and should be repealed.  To dramatize 
this view, I am going to go downtown, hire a prostitute, go inside my 
apartment and have sexual relations with her (even though I have 
irrefutable medical evidence demonstrating that I find sex unpleasant 
rather than gratifying).  I'm willing to make the sacrifice."

I go downtown, followed by cameras, and make the offer to a random 
prostitute.  We then go into my apartment (no cameras) and consumate 
the transaction in both senses of the word.

Now this seems much closer to core First Amendment concerns then 
someone paying people to have sex in order to make a commercial. film 
that will give other people sexual gratification in return for a cash 
payment.  but I doubt that many people would argue that I was immune 
from arrest and conviction in the hypothetical.

At 12:52 PM 10/19/2009, Steven Jamar wrote:
>A missing word or two makes Prof. Maltz's post a bit cryptic.
>Conduct is speech.  Not all conduct, but expressive conduct is 
>speech for 1st Amendment purposes.  Article 19 of the ICCPR and most 
>(if not all) modern constitutions protect freedom of expression in 
>all its forms and in all media to avoid the literalist problem.
>So, anytime the government wants to regulate expression, it must 
>take into account the 1st Amendment, whether the targeted expression 
>is conduct or print or spoken words or internet postings.  If it 
>wants to regulate expression, it must either do so as a TPM 
>regulation or meet the strict scrutiny test.
>Non-expressive conduct can be regulated under the rational basis 
>test.  So conduct for its own sake or for a  non-expressive purpose 
>(walking from here to there, walking for exercise, sexual relations 
>for pleasure or power or whatever other than expression) can be 
>regulated pretty much as long as the legislature sees fit do do so 
>-- under the 1st Amendment (of course we have travel and EP and 
>privacy and other rights at stake as well).
>So the state can regulate commerce and sex-for-money as pure conduct 
>and commerce that it can ban, like gambling.
>I doubt the state can ban dance because dance is inherently and 
>inevitably expressive -- or so one could argue.  Nor can the state 
>ban photos or movies or videos for much the same reason.
>Is the distinction a sharp, bright line, easy to discern in all 
>instances?  No.  Must one upon discerning it agree that it is 
>sensible or correct?  No.  But it seems to me that the distinction 
>is real.  It is obvious at the polar extremes.  It is less obvious 
>in the spongy middle.  This phenomenon is not unique to 1st 
>Amendment analysis nor to pornography or obscenity or sex-related 
>matters in general.  It is a very common problem in the law.
>The reason for the line being where it is may well not be strictly 
>logical or capable of application consistently.  It may be downright 
>unpersuasive.  But I think a reason exists.  Once again, I think it 
>is in part a problem of the level of generality or abstraction at 
>which one looks.  Prof. Maltz in his statement below is looking at a 
>very general level as opposed to a finer, detailed level.  That's 
>fine (pun intended), but the scale of the map affects what one sees.
>On Oct 19, 2009, at 12:28 PM, Earl Maltz wrote:
>>"Self-evidently?"  Not to me.  I haven't yet heard anyone explain 
>>why the right to free speech should CONDUCT (not speech)  which a) 
>>the state has a right to prohibit generally and b) has prohibited 
>>generally simply because the person engaging in the conduct claims 
>>that he is doing it for expressive purposes.
>>At 11:26 AM 10/19/2009, Lawrence Stanley wrote:
>>>Eugene Volokh: " I suppose the First Amendment argument would be 
>>>that to criminalize such payment would excessively burden the 
>>>producer's right to create the constitutionally protected 
>>>material, and that the interest in preventing the conduct isn't 
>>>sufficient to justify the restriction.  Should that argument prevail?"
>>>Self-evidently. As the Freeman court held (and here is what you're 
>>>looking for):
>Prof. Steven D. Jamar                     vox:  202-806-8017
>Associate Director, Institute of Intellectual Property and Social 
>Justice <>
>Howard University School of Law           fax:  202-806-8567
>"Next the statesmen will invent cheap lies, putting the blame upon 
>the nation that is attacked, and every man will be glad of those 
>conscience-soothing falsities, and will diligently study them, and 
>refuse to examine any refutations of them; and thus he will by and 
>by convince himself that the war is just, and will thank God for the 
>better sleep he enjoys after this process of grotesque self-deception."
>Mark Twain in "The Mysterious Stranger"
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