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

Mon Oct 19 10:33:36 PDT 2009

Nelson Lund's comment below points out that the identification of the
purpose of the sex is quite selective. The/A purpose for a prostitute is
to make money through the sexual gratification of a customer who is
physically present. The/A purpose of the the people making an obscene
film is to make money through the sexual gratification of a customer who
buys the film. The sex is still the cake for the customer, and the money
is still the cake for the performer. In addition, in at least a large
number of obscene films, actors are in fact paid for either providing or
receiving sexual stimulation and gratification, the external evidence of
which is a primary focus of the camera.

If I recall correctly, the word "pornography" derives from "writing
about prostitutes," and I don't see why filming an act of prostitution
suddenly makes it not prostitution any more. ("Oh no, officer, you see,
I'm making a movie about running red lights...") Perhaps what's going on
here is underlying discomfort with the state's power to prohibit
prostitution?

Jennifer Hendricks

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Nelson Lund
Sent: Monday, October 19, 2009 12:27 PM
To: Lawrence Stanley
Cc: Conlawprof at lists.ucla.edu
Subject: Re: Sexually explicit dancing and movies,prostitution laws and
the First Amendment

It does not seem self evident, or in my opinion even very plausible, to
say that "the main inquiry is: what was the purpose of the sex: to make
the film or to have to sex?" Why is making a film expressive conduct
while having sex is not expressive conduct? Don't an awful lot of people
say that they are expressing themselves through sex? Does constitutional
law deem them to be liars, while accepting the same claim from the
filmakers? On what reasoned basis could it do so?

Nelson Lund
George Mason

Lawrence Stanley wrote: 

	The California law appears to turn on the question of mens rea,
but to get there, the Court adds up the reasons why it finds for the
defendant. Looking for certainty in how a principle is applied in every
hypothetical situation is, unfortunately, not the way criminal laws
operate, in practice -- and particularly not in the realm of sex. But
the main inquiry is: what was the purpose of the sex: to make the film
or to have to sex? In other words, was the filming just icing on the
cake, or was it the cake? Relevant to this inquiry are the issues of who
is paying, who is being paid, who made the film, and what was the
purpose of the filming. Whether or not the film is intended for sale in
the marketplace could certainly be relevant, as could the presence of a
script, although these would not be dispositive.

	On Mon, Oct 19, 2009 at 12:15 PM, Nelson Lund <nlund at gmu.edu>
wrote:

		If I understand Eugene's First Amendment argument (which
he offers without his endorsement), it would seem to render
anti-prostitution laws unconstitutional unless there is a
constitutionally meaningful distinction between the film producer's
expressive conduct and the expressive conduct involved in having sex
with a prostitute. Can such a distinction really hang on whether the
conduct is filmed or not? Or on whether the film is sold in the
marketplace? Or on whether the participants act out some fantasy in
funny costumes before they have sex? Unless the answers to such
questions are self-evident, I think Earl's original query remains.

		Nelson Lund
		George Mason

		Volokh, Eugene wrote: 

				But what of a state statute that just
bans all sex for money, regardless of whether the money is paid by one
of the parties to the sex act or by someone else?  I'd imagine that in
many states hiring a prostitute for your friend is a crime even if you
don't watch this for sexual gratification.  And I would also think that
under the law of many states it doesn't matter whether the customer was
doing it for sexual gratification, or on a bet, or to be filmed.

				That's why I think Freeman's statutory
analysis isn't terribly helpful to dealing with the general question.
The question then is whether there's some adequate First Amendment
justification here regardless of the California statutory argument, and
also what this justification does with regard to things like hiring a
prostitute to have sex with you (or a friend) but filiming this to show
to some other friends (or to keep in one's library) -- I realize that
this might be covered under the California statute, but the First
Amendment question would be independent of those distinctions.  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?

				A related hypothetical:  Say a movie
director wants to shoot a movie in the U.S. using a noncitizen actor who
doesn't have a U.S. work authorization, but federal immigration law bars
such hiring on the same principle as it bars the hiring of other
nonicitizens who don't have such authorization?  (My guess is that
current immigration law either on its face or as applied does generally
allow such hiring of foreign actors, but let's assume that the law has
no exemption for actors.)  Would there be a First Amendment right to
hire the actor notwithstanding the immigration law?

				Eugene

				-----Original Message-----
				From: conlawprof-bounces at lists.ucla.edu 

[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
				Lawrence Stanley
				Sent: Monday, October 19, 2009 7:02 AM
				To: Conlawprof at lists.ucla.edu
				Subject: Re: Sexually explicit dancing
and movies, 
				prostitution laws and the First
Amendment

				The sex acts constitute expressive
conduct, which is 
				protected by the First Amendment. A more
specific answer, 
				under California law, can be found in
People v. Freeman, 46 
				Cal. 3d 419 (1988).

				Harold Freeman hired and paid actors to
perform in "Caught 
				from Behind, Part II." As part of their
roles, the performers 
				engaged in various sexually explicit
acts, including sexual 
				intercourse, oral copulation and sodomy.
He was charged under 
				the California Penal Code law for
"pandering," which is 
				defined as "procurement of persons for
the purpose of prostitution".

				The Court specifically rejected the
prosecution's argument 
				that the sex acts depicted on film were
"prostitution," which 
				is defined as "any lewd act between
persons for money or 
				other consideration." Since the actors
in the film were paid 
				by the filmmaker, the acts did not
qualify.  Furthermore the 
				Court found no evidence that the acts
were for the purpose of 
				"sexual arousal or gratification of the
customer or the 
				prostitute," citing People v. Hill
(1980) 103 Cal.App.3d 525, 
				at 534-535.

				Nor was Freeman found to have the
requisite mens rea or 
				purpose to establish "procurement for
purpose of prostitution."

				The Court held: "[T]he prosecution of
defendant under the 
				pandering statute must be viewed as a
somewhat transparent 
				attempt at an "end run" around the First
Amendment and the 
				state obscenity laws. Landmark decisions
of this court and 
				the United States Supreme Court compel
us to reject such an effort."

				That doesn't mean that someone can hire
someone to commit 
				murder, rape, or robbery just to
photograph or film it. These 
				are crimes, the Court held, "independent
of and totally apart 
				from any payment for the right to
photograph the conduct." 
				Sex itself is not illegal. Paying
someone for sex is.

				Lawrence A. Stanley

				On Mon, Oct 19, 2009 at 10:24 AM, Earl
Maltz 
				<emaltz at camden.rutgers.edu>
<mailto:emaltz at camden.rutgers.edu>  wrote:

				If I hire a person to perform real or
simulated sex acts, 

				that person 

				is guilty of prostitution and I am
guilty of solicitation.  

				So how can 

				it be that the First Amendment shields
performers in porn movies, 
				directors, producers, etc (or exotic
dancers for that 

				matter) from prosecution?

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