[POSSIBLE SPAM] Re: Sexually explicit dancing and movies, prostitution laws and theFirst Amendment

Mark Tushnet mtushnet at law.harvard.edu
Mon Oct 19 18:41:06 PDT 2009


I think I must be missing something.  I thought that the argument for treating regulation (prohibition) of hiring someone to perform a sex act for purposes of making pornography differently from regulation (prohibition) of hiring someone to perform a sex act solely for sexual gratification was that the former but not the latter had an incidental effect on expression, meaning the dissemination of material with some artistic, literary, etc., content (or whatever the relevant standard for identifying suppressible material is, after Miller and Jenkins).  If the material produced isn't suppressible, it doesn't follow that hiring someone to perform a sex act, etc., is protected by the First Amendment, to use the earlier distinction, but it does provide a ground for distinguishing between the two situations.

So maybe what I'm missing is that, if the material produced is itself suppressible, it's not protected (or covered) by the First Amendment, so prohibiting the hiring of someone to perform a sex act in making the material doesn't have an incidental effect on expression.  Here I think we'd have to think about the implications of chilling effect ideas in the present context, which at least doctrinally are weaker than in other contexts (I interpret Stevens's "wouldn't march our sons and daughters off to war" point to be that chilling effect ideas are indeed weaker).  But, at least at this point in my thinking, "weaker" doesn't mean "absent," and if that's right, the possible incidental effect of the prohibition on expression that might be deterred by the ban on obscenity would still support the distinction we've been talking about.

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Nelson Lund
Sent: Mon 10/19/2009 7:32 PM
To: Hendricks, Jennifer
Cc: Conlawprof at lists.ucla.edu
Subject: [POSSIBLE SPAM]  Re: Sexually explicit dancing and movies,prostitution laws  and theFirst Amendment
 
At least for me, what's going on here is an underlying discomfort with 
substituting ipse dixits for reasoned analysis. I haven't expressed an 
opinion on whether hiring prostitutes to make pornography should be 
illegal or on whether hiring prostitutes to have sex with should be 
illegal. I'd just like to see a reasoned and reasonable argument, if 
there is one, for treating them differently under the First Amendment.

Nelson Lund
George Mason

Hendricks, Jennifer wrote:
> 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 
>> <mailto: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> 
>>>>     [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 <mailto: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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>>>>>     Please note that messages sent to this large list cannot be 
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>>>>     _______________________________________________
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>>
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>>     Please note that messages sent to this large list cannot be
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