Why is Prostitution Illegal, but Pornography is Not?

I have heard (and read) this question asked by lots of really intelligent people. See, e.g., Rogier van Bakel. Of course, Rogier’s take on it is more rooted in the “morality” vs. liberty battle. Rogier is a five star general in the battle for common sense and liberty.

Andrew Sullivan asks it a little differently — more as a purely legal legal question.

1. Why is it illegal for me to pay a prostitute for sex, but it’s NOT illegal for a film director to pay two people to have sex in front of a camera and then make money for his product in the form of a DVD or an online download?

2. As a corollary: Why are a prostitute and her john held in such contempt by the media and the public, but Jenna Jameson and Ron Jeremy are treated as rock stars on both cable and network television? Are they not prostitutes? They were, in actuality, paid for sex. No?

The reason that adult film performers are not “prostitutes,” and why paying people to perform in erotica is legal is discussed in the seminal adult-entertainment case, People v. Freeman, 46 Cal. 3d 419 (1988).

In that case, Harold Freeman hired and paid actors to perform in a non-obscene erotic film, called “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.” The State of California charged him and convicted him of five counts of “pandering,” defined as “procurement of persons for the purpose of prostitution” — under the California Penal Code.

The Supreme Court of California 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. People v. Freeman

Okay… but how did they come to that conclusion?

The California Supreme Court noted that in order for there to be “pandering,” there must be “prostitution.” Prostitution is defined as “‘any lewd act between persons for money or other consideration.” The state argued that since the performers engaged in sexual acts before the movie cameras “for the money they received,” they were engaged in prostitution, and thus Mr. Freeman was engaged in “procuring” them for prostitution.

If you don’t think too much, this makes a lot of sense. But, we were put on this earth to think. The Court rejected the State’s argument on two grounds — the statute simply didn’t fit, and even if it did, it would run afoul of the First Amendment.

Statutory Construction

This is the dull part. However, it will become apparent why this is just as important as the First Amendment issue.

The Court noted that for an act to constitute prostitution, “the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.” Id (citing People v. Hill (1980) 103 Cal.App.3d 525, at 534-535). Since the payment of the acting fees was the only payment, there was no evidence that any payment was made for the purpose of sexual gratification.

Defendant, the payor, thus did not engage in either the requisite conduct nor did he have the requisite mens rea or purpose to establish procurement for purposes of prostitution. People v. Freeman

The First Amendment Issue

Even if defendant’s conduct could somehow be found to come within the definition of “prostitution” literally, the application of the pandering statute to the hiring of actors to perform in the production of a nonobscene motion picture would impinge unconstitutionally upon First Amendment values. People v. Freeman

The court recognized that one cannot hire someone to commit murder, rape, or robbery just for the purpose of photographing the crime and then claim that the First Amendment protects one’s right to do so . These are crimes “independent of and totally apart from any payment for the right to photograph the conduct.”

In other words, robbery is illegal. Having sex is not. Paying someone to commit a crime like robbery still leaves the underlying crime of robbery — whether there is a payment or not. Paying someone to have sex in a film requires us to determine whether the payment makes the otherwise-legal intercourse “prostitution” or not.

The court started with the correct presumption — that the film was expressive material, and thus presumptively First Amendment protected. The Court had previously held that it was “too evident to require elaboration” that applying criminal penalties to sexual activity in a live theatrical performance “would have an inhibiting effect upon the exercise of First Amendment rights.” (Barrows v. Municipal Court, supra, 1 Cal.3d 821, 827.), and that was the case in Freeman as well.

To subject the producer and director of a nonobscene motion picture depicting sexual conduct to prosecution and punishment for pandering, including a special provision for ineligibility for probation attendant on such a conviction (see fn. 2, ante), would rather obviously place a substantial burden on the exercise of protected First Amendment rights. To include the hiring and paying of actors for acting in such a film within the definition of pandering would therefore unconstitutionally infringe on First Amendment liberties. [1c] Consistent with Barrows, Burstyn, Burton and Flack and consistent with the principles of statutory construction outlined above we are thus compelled to conclude that the Legislature did not intend the antipandering law to apply to the payment of acting fees for performance in a nonobscene motion picture. We observe that if section 266i were applied in the manner urged by the People, it would include within the literal sweep of the statutory language films of unquestioned artistic and social merit, as well as films made for medical or educational purposes. We reaffirm our observation in Barrows, “any more restrictive rule could annihilate in a stroke much of the modern theater and cinema.” People v. Freeman

Back to Statutory Construction

Remember the boring part above? Here is why it is important: The State sought a stay of enforcement of the California Supreme Court’s decision from the U.S. Supreme Court. Justice O’Connor, sitting as a circuit justice declined to enter a stay and opined that there was not much likelihood that the full court would grant certiorari. See California v. Freeman, 488 U.S. 1311 (1989).

O’Connor noted that the state might have had a right to appeal had the California Supreme Court decided the case solely on First Amendment grounds. However, the decision was based on two independent rationales – statutory and First Amendment. Even if the Supreme Court were to review the California Supreme Court’s decision and find that the state court had misapplied the First Amendment, on remand the California Supreme Court would still have reversed the conviction on statutory grounds. Accordingly, the case was over one way or the other.

Interesting… but how might a similar prosecution come out in a different state?

You don’t need to be a Constitutional Law expert to realize that this decision is not binding upon any other state. The California Supreme Court decision only binds the State of California. So what if another state wanted to bring the same exact prosecution? Lets call that imaginary state “Kansas.” What if the Kansas legislature decided to draft its prostitution statute so that it did encompass acting in an adult film?

If that were the case, and Kansas prosecuted someone under its new prostitution law, the statutory construction analysis in Freeman would be absent. However, the First Amendment concerns would still be there. The Kansas Supreme Court would still probably overturn the conviction on First Amendment grounds. If that happened, one must wonder what the U.S. Supreme Court would do.

Justice O’Connor’s prediction was this:

It is unlikely that four Justices would vote to grant certiorari, since the state court’s decision rests on the adequate and independent state law ground that Freeman’s hiring and paying of performers for pornographic films does not constitute pandering under the State Code. California v. Freeman.

Note that she made no predictions on how the Court would rule on the First Amendment issue. If she did, she probably would have guessed that the Court would have also supported the California Supreme Court’s First Amendment analysis. However, that was a very different Court than the one we have today. Justice Brennan was still on the Court, as was Marshall, and Scalia was still a respectable scholar of the Constitution, who seemed to be more concerned with the rule of law than the results of the decision. He has changed in 20 years. The Roberts court might very well pull a five Justice majority together to support a strong anti-porn decision.

So why doesn’t Kansas give it a whirl?

There appears to be a strong mood of détente between the states and adult film producers. Although a prosecution for prostitution in the making of an adult film in one of the 49 other states might be successful, it might fail. Only an insanely social-conservative prosecutor would seek to apply the law this way. There is no shortage of prosecutors who fit that description, so why aren’t there more prostitution-film cases? Because prosecutors usually aren’t incredibly stupid, and the stakes are very high.

Right now, adult film producers in 49 states occasionally look over their shoulder, worried about a Freeman prosecution. The local smokies can knock on the door and scare them with just such a threat. That uncertainty and fear works wonders. I’m sure that more than one cop’s kids went to college on “tip money” generated by just this kind of fear. If nothing else, it makes adult film producers just a little less brazen than they might otherwise be. That slight chill in the air keeps everyone relatively happy. It gives law enforcement a mental tazer, and it keeps everyone from jumping into the adult film industry, thus reducing competition and maximizing profits for those who dare. Everyone is relatively happy.

Imagine if prosecutor Cletus P. Dinkweeder decided to bring a Freeman type prosecution and his state supreme court followed the Freeman analysis in Kansas. Now Kansas becomes a “porn producers are protected” zone. Worse yet, what if the U.S. Supreme Court finally got a chance to affirm Freeman? Do you think Mr. Dinkweeder will win his next bid for re-election? Not a chance. He’d be lucky not to be tarred, feathered, and set on fire by his local congregation.

So, pretty much everyone looks at Freeman and accepts it as the de-facto law of the land. Given the stakes, I expect that it will remain so.

69 Responses to Why is Prostitution Illegal, but Pornography is Not?

  1. […] the perfect grounds for discussing issues relating to prostitution and porn. As discussed in depth here, the court system has distinguished the two acts, but Popsquire isn’t […]

  2. Caz says:

    This leads to not only a million possible questions about what is going on in a producers head when they approve a sex scene (since the question of whether or not achieving sexual gratification is the point of the transaction, regardless of the use of the term ‘actor’), but more importantly, why it is that prostitutes cannot make a claim that the criminalizing of their trade is a bar on first amendment rights.

    Seriously, the question isn’t ‘why is pornography legal?’
    It’s ‘why is prostitution illegal?’

    From a statutory point of view, if what is written here is valid, then the only thing that makes prostitution illegal is the viewpoint that it is ‘for the purpose of sexual arousal or gratification’ when in fact an imaginative attorney could easily make a case that the sexual arousal or gratification is a side effect of an act that also has purpose in the religious or psychological well-being of either party involved, also making the case that porn stars and strippers are every bit as guilty of creating arousal as any prostitute, and actually any girl who wears a low cut shirt to work as well. It’s shocking that no one has yet to muddy these waters, but I think it will eventually happen…

    In the future, expect this: anyone can sell anything to anyone else, except in the most extreme cases of a person needing favors, financial or otherwise, from someone else who demands sex in the exchange. At that point, it would become exactly what it should have been to begin with: either sexual exploitation, or a form of statutory rape. Prostitution and ‘pimping’ will become a licensed trade, and if this is a bad thing to anyone, then they really should re-examine whether living in a free society is a blessing or a burden.

    • JJ says:

      damn I searched for something about this topic on google not expecting to find anything, but this was a brilliant article. and thanks for that last comment which was surprisingly intelligent and much better thought out then I could have constructed it to be, when I saw that there were 19 responses to this I was expecting something more along the lines of “huh-huh…. porn rules” haha

  3. Sean(doc)Martin says:

    Pornography is supposively covered because it is a 4th Amendment right to have it. To possess the recording of a legal act, but not distribute it. You can possess obscene materials but you cannot distribute them, or disseminate them. It is also what could be considered art. The Supreme Court has ruled pictures of hetrosexual congenital intercourse are protected, but that is far as they have taken it. Other acts such as anal and oral sodomy are not protected.

    It is what they might consider of “artistic value” in a New York art gallery. They can consider “erotic display” of 2 adults, art, or the jars of shit as artistic expression, and so stopping people from making that sort of photography and videos would somehow violate their freedom of expression. but not of someone eating shit, even if it’s legal to do between 2 consenting adults. This still does not address the issue of paying someone to perform in such videos or photography. You can pay someone to pose nude, just as you can pay someone to strip, but this does not violate prostitution laws. But paying someone to have sex with you, then filming it does. In some states, you can pay people to perform live sex shows, and film it, without pandering, but “live sex shows” are not protected under the constitution. They are considered indecency in many states, or performing an obscene act.

    And so the pornographer can argue he is not “promoting an obscene act” since he is not exposing the public to it, it is a privately held taping. This is irrelevant because he is still promoting a live sex act, and it is not illegal for adults to come in and view porn productions, if the community so allows it.

    The question would be then is it illegal for someone to pick up 2 prostitutes as long as they do not perform with them (a live sex show) barring someone from participating themselves ( which is what the “constitutionally protected” director or producer/actors so in so many cases) definitely seems like a 4th Amendment privacy violation to me. Can he have anyone else in his household “perform” as well, provided he pays, or offers to do it for free as an artist, but himself? (Like the original author brought up about someone paying his son hookers) Or is this only on the condition he tapes the entire act? Does this mean only paid performers can provide live sex acts or something? Or that one cannot participate in them, if it is for arousal (the prostitute) Or can it only happen provided it is part of some artistic expression he plans on showing others (a contridiction of the 4th Amendment Right to privacy that community standards must be based on)

    Other communities can decide anything they want is obscene, if the material is distributed there. They have found Max Hardcore material obscene in Florida, and it involved no obscene material as ruled by the Supreme Court. I was only guessing, that they were using the 4th Amendment, and “communities” as an extension of that right (what consenting adults could show each other the privacy of their homes, and furthermore what they could decide be shown in their communities) but businesses do not enjoy the same privacy rights as businesses, and can be told what they can and cannot sell by the state, not just the community which they reside in. Supposively showing porn to children violates “child endangerment” laws, but obscenity do not, that is not the issue. They are simply obscene.

    If you have 2 perverted brothers, or cousins that go around picking up hookers together, and one takes turns paying her, the other enjoying her or them. Is their activity protected as long as, the spectator brother makes an doodling of it, and says it is all part of their works as artists. A jury could rule that this was a rouse, just so they could buy prostitutes. And so the brothers making the sketches would have to take drawing lessons, to make sure it was convincing. That is that he planned on showing someone else it, as freedom of expression.

    If he or the 2 of them, uploaded them unto the internet for many to see, even if they were well done realistic drawings, the judes…I mean judges would probably rashly rule it was not constitutionally protected. Only if they intended to SELL them, would they know they were serious. As this has all been done, by the Rothschild <Federal Reserve picked Supreme Court in order to protect jewish pornographers and help weaken white society, and they damn well know it.

    They better make sure their little “North American Union/Amero”, economic crash plan doesn’t backfire, what are all Earl Warren’s prodigy gonna think if there is a new republic formed and they no longer enjoy the same constitutional liberties, as those who admired so and helped bring about so much greatness to the world.

  4. Joy… white supremacists have stopped by to comment. Ugh.

  5. A Jude says:

    No need to hide taping it, \”pornstars\” are prostitutes too. If I pay a woman to blow a random bum sleeping against a building, because I find it amusing, I am guilty of procurement. But if I video tape it, it is artistic expression (I don\’t think I have to try very hard to convince the bum to take payment for \”his performance\”) I can set up shop to avoid indecency laws, which would allow any bum and downlow \”street thug\” to walk off the street and \”gang bang\” her. But instead of using some hagley old hooker I found on the corner, I will entice a fresh 18 year old to do it, and turn her into her a whore. If I have friends or fellow tribesmenin the media they could greatly help me persuading as many as I can in this endevor. I will not just use a 18 year old white girl, not just because she is better to look at than the random street whore, but because I think it is funnier, and I hate your morales and above all I hate you.

    I have just corrupted a denigrated great segment of your society because I think it\’s amusing and very profitable, and I have been given legal protection to do it. Hell, the Supreme Court of the land has granted me this protection. And so if the \”people\” find my behavior too intolerable, they still cannot persuade their law makers to do anything about it. Now you know why I have been expelled from every nation on Earth. You cannot expel me from nation, because the central bankers will not allow it, so what can you do?

  6. My blog, my rules, no more comments by anti-semites. American nazis can go fuck themselves.

  7. In Rhode Island Prostitution is legal as long as it is behind closed doors.
    I have been doing a documentary on this subject in the asian massage parlors.
    “Happy Endings?”
    People have been debating this “loophole” and trying to close it for years now.
    Check out the website if you are interested.

  8. wilson says:



    • solrac says:

      Did I recently see you downtown, dirty and drugged, with a picket sign in hand, yelling out “repent for your sins”?

      I think you’re missing a shoe.

  9. Awesome… I can’t wait to see it.

  10. MattMan says:

    So, if porn is legal, can I just have a still camera in the room with a prostitute and that be considered me paying her a modeling fee for my artistic expression. Couldn’t that be a loophole that would turn “prostitution” into “production”? If a model release form were signed, isn’t pretty much anything we do in front of a camera (turned on or not) legal?

    • Dr. Gonzalez says:

      Not exactly, here’s why:
      It is not illegal for the director/cameraman to pay both actors to have sex. It is all legal as long as the money is not coming from the person receiving or performing sexual acts between each other.

      So, I want to have sex with a prostitute, but how can i do it legally? First you have to go through all the model release forms, make sure she’s over 18 etc.. to look even more professional you could have a friend who has small photography business, Here is the trick, you have to hire him or someone who wont snatch you out to hire you to act or perform a sexual scene with a woman.
      DONE! This is the only way you can legally have sex with prostitutes PERIOD! oh and by all means have her tested for STD’s and keep the records for gods sake!

      • heher says:

        “It is not illegal for the director/cameraman to pay both actors to have sex. It is all legal as long as the money is not coming from the person receiving or performing sexual acts between each other.”

        And guess what: this makes absolutely zero sense. Sex is sex. What you do with your own body (with your own consent) should be legal as long as it doesn’t harm someone else. It’s just a huge waste of time, money, and resources to go after people who are only harming themselves (and sometimes they aren’t even harming themselves).

      • iky says:

        A lot of directors play in their own movies. And there is porn that has the same guy doing the shooting and the screwing. All you have to do is sell the tape. And, well, all of these stars also engage in sex for money. Like the girl that publicly admitted having sex with Charlie Sheen and getting a huge check for it. Why don’t they get prosecuted? Easy to prove, just verify the bank account. I think this law is retarded. Should legalize prostitution, tax it and stop spending tax money on vice squads chasing the prostitutes and “Johns”.

  11. I don’t think that any judge or jury would buy the argument. It would be a question of fact — whether you were indeed making an adult film or if you were just a customer looking for a way to avoid prosecution.

  12. […] to the seminal case of People v. Freeman, 46 Cal. 3d 419 (1988). (Case discussed in depth here: Why is Prostitution Illegal, but Pornography is Not?). In that case, the California Supreme Court held that Mr. Freeman was not guilty of […]

  13. Dave says:

    What happened to separation of church and state? What argument or legal basis against prostitution is there aside from well intended religiously based moral objection? The road to hell is paved with such good intentions. What is wrong with “the purpose of sexual arousal or gratification”? Any and all arguments that define prostitution as wrong or bad are religiously based. So what happened to separation of church and state? What we have here is a law reflecting the arrogance of people who speak for “God” while imposing their moral beliefs on others in complete disregard for the wisdom behind the mandate of separation of church and state.

    • really? says:

      This is a common sense observation on porn & prostitution. Nothing to do on how you view religous people. None of these judgements are religious based. Your comment makes no sense, you are just bringing up some arrogant stereotype about religous people. I really can’t stand this intolerance from people like you.

      • heher says:

        Realistically speaking, many religious people seem to be almost completely against sex and pornography. They assert that it damages your mind and hurts children so therefore it is wrong (without doing any research, of course).

        No, he asked a valid question. What happened to the separation of church and state? Some laws that we have are purely religious. They don’t exist because they make logical sense.

        • K says:

          First, there is NO separation of Church and State, Read the constitution before you start acting like a con law scholar. Second, Let’s take a look at what has happened since we started our moral decay in this country.

          1. Remove prayer from schools; now we have school shooting. This is just a correlation NOT a causation but it is interesting.
          2. Allow abortion, porn and in some cases prostitution; Now we have an epidemic of STD’s in this country, not to mention teenage pregnancy, sick child molesters (Including clergy who should all be shot). Again not a causation but interesting.

          And let’s not forget that when we started removing all symbols of God and religion in general from public areas (Courthouses and such) we got 9/11.

          The person who said they wanted to see God’s wrath….. It’s already here and I promise you it will get worse if we don’t do something.

          • Umm... says:

            To the poster above me,

            STD’s have existed for hundreds and hundreds of years and have very little to do with pornography.

            Pedophilia has been practiced since well before the creation of this country and it’s laws, one need only look at Ancient Rome.

            School shootings are more prevalent now because guns are more accessible. Prayer is entirely besides the point.

            Your last point is so ridiculous I can’t even…

            Please go away and don’t speak to people.

            • Agreed says:

              I absolutely agree with the last comment! Spot on! As far as religion goes – I cannot believe it is still something people widely try to impose. You can believe in whatever you wish – the attitudes stated in the bible, koran etc. are set by somebody else just as stupid or even more as you and me. Not by some all-knowing entity we call God or Allah or Buddha – those are just creations of our ancestors’ ramblings. So in my view it is irresponsible and ignorant to base laws or ideologies on them. They were created in a different, more closed world. We can now create our own rules and moral standards – no need for religion. Base your arguments and laws on fairness and freedom not religion. It just makes you look shallow and hypocritical. As for the whole argument about porn and prostitution – they should be both legal and of course regulated. There is so much prostitution in different forms I see it being illegal as a hypocritical stance of a society confused and spineless.

          • ajmen says:

            Interpretation of the constitution does not depend upon a strict reading of the constitution alone. You must taken into account applicable statutes as well as all relevant case law which has interpreted “what the law is.” (Marbury v. Madison). The doctrine of separation of church and state is a widely accepted principle and is applied in numerous Supreme Court cases since the early 19th century.

            You tea-partiers know less about the Constitution and how it works than anyone else. The Constitution, believe it or not, sets up three branches of government which (should) all have equally divided power. When you say there is “no separation” of church and state in the Constitution, you are not only saying something everyone already knows, but you are displaying your blunt ignorance of the fact that our judicial system has had just as important a role in the shaping of our nation as the original words in our constitution have had. If we just went by the words in our Constitution, black people would still only be worth 3/5ths of a person for purposes of apportioning in the House of Reps. Not that you tea-partier Christian nuts would have much of a problem with that, given the black turnout at your events.

        • iky says:

          You are just stuck in an idea and don’t want to get it. It has nothing to do with religion and everything to do with morals. Which again, have nothing to do with religion. Morals are logical and are historical observations of society, not some retarded scientist that has no connection to life doing “research” on rats to prove sex doesn’t damage people’s minds. This law is logical simply because this act is immoral. I’ll give you and example. I have two friends who used to be gigolos. They are not anymore. I asked each one why they stopped doing that. They both sad that it was “degrading”. They had sex for money with cougar type women and thought it was degrading. It makes you feel bad and makes you respect yourself less, and therefore, makes you a less valuable being. To society. Not to a man in the cloud. That is why morals exist. Something is not good for the society (tribe, city, etc.) as a whole. And it gets into their moral code and then into the law. Bible is partially a collection of old moral laws. Arabs don’t eat pork because it’s spoiling faster than beef. They live in a hot climate. Pork made some people die. They stopped eating it and put it into their book of rules. And that’s why society was regulating prostitution. When it was sane. Now it is nuts and listened to Freud retards too much to retain any sense.

          • TFF says:

            Retarded scientist? really? Anyway, just because your two friends find it degrading doesn’t mean everyone does, you base the whole of humanity on the expression of your two friends really? how shallow. Also, if it is truly degrading then why do people do it? Even if it was really degrading you don’t need the government to tell you “stop that’s bad for you stupid”. Therefore it begs the question why is prostitution illegal? Primitive values that’s why (such as christian thought and other religions).
            Lets break prostitution down to what it really is, which is paying someone for pleasure. Looking at this prostitution should not be illegal. There are numerous occupations that fall into this vein but are considered legal. Someone mentioned massage parlours it is the same thing just without sex (or sometimes with it). Even if prostitution is degrading, paying someone to do something degrading should not be illegal. When you pay the janitor to clean up the layers and layers of shit in the bathroom, is that man a whore? Yet it is truly degrading work isn’t it? However i doubt this message will have an impact, there are way too many people who hear only what they want to hear and have the reasoning that if I don’t like it! or I find it Immoral! then it must be immoral to everyone else too! One can look at this anti gay marriage thing too (another primitive thought process we must overcome): “I find gay marriage abhorrent and even though it has no impact on me IT SHOULD BE ILLEGAL!”

            TLDR: if you think prostitution (paying someone for pleasure) should be illegal, then your mindset must be that sex in itself is degrading which would warrant a trip to the psychiatrist.

  14. […] *Why is it illegal to pay a prostitute for sex, but it’s NOT illegal to pay people to have sex in front of a camera and then make money selling the resulting film? more… […]

  15. Jason says:

    I have no idea why people are such prudes… I suspect its a control issue.

    People simply do not like other people to have fun….

    But seriously, do you think it is illegal to produce adult content in Alaska?

  16. arimelman says:

    Thanks for the link. It’s a great read. Some added information. The more people learn about this issue, the better.

  17. Matt says:

    I see two things here. First one is that it would open dialog between guys that could want to persuade girls that are not prostitutes to prostitution as it would be legal. Legalizing it would simply open discussion, recruitment, and it all would be legal. Now its not.
    So for protection of girls that are not prostitutes as of now talking openly about it is illegal.

    Also from financial view movies are defined as product. Product is easier to track and tax. Prostitution is a service and can be easily not shown and tax evaded. Also you can easily deny performing service because there is no fine line where sex becomes prostitution. As example wee could say GF telling her BF to finish a house paining will result in very enjoyable night could be viewed in legal term as prostitution too as it is sex for something.

    • heher says:

      “First one is that it would open dialog between guys that could want to persuade girls that are not prostitutes to prostitution as it would be legal.”

      If the girls want to do it, let them.

  18. Caz says:

    Have we found enough moral gray areas yet?

    Of course we have. Thinking about this on occasion, I’ve started to wonder if the control issue isn’t the real underlying issue. If prostitution was legal, then hookers would have protection from the police and not have to worry about the multitude of problems that comes with being a streetwalker, like beatings, robbery, etcetera…
    Maybe it’s illegal to keep the sluts in line? Give the state something to hold over their heads? Forcing them to risk their life on their own or get a pimp who may be abusive keeps them from having a decent life, which reinforces moral behavior from a religious perspective.

    Here’s an idea: stop listening to the church and their servile government. Do what you want, take responsibility for what you do, and for the love of God vote libertarian.

  19. […] California Supreme Court ruling does not hold in other states, leading to what First Amendment attorney Marc Randazza describes as a “mood of detente”: Right now, adult film producers in 49 states occasionally look over their shoulder, worried about a […]

  20. Listen says:

    I don’t know if anyone will read this, but this makes prostitution all the more possible and heres how! The pimp can pretend to be making a pornographic film (or really be making one) using his prostitute and the client who wants sex. He can take the money from the client and pay the client with a portion of that money (1 dollar) and claim he is an actor in his movie, as well as paying the prostitute (1 dollar) or not paying anyone and claiming they volunteered. On the other hand, I do understand the courts decision and their feeling that it would restrict freedom of expression too much. But it also makes what was and is a crime legal and easy. A person getting paid to have sex is a prostitute.

  21. Ofnoontide says:

    It certainly seems that these lines can be blurred with some kind of “pornstar for a day” gimmick where customers pay to sleep with a pornographic actress but the activity is also filmed and compiled into a video for distribution. Essentially a hybrid of amateur pornography and prostitution.

  22. The are really the sexy girls I like

  23. Charles says:

    Does pornography encourage sexual assault? If there is a link, there are different points of view, then this could be grounds to regulate pornography. It seems today that almost anything goes in Pornography. A man can tie up two women, have complete control, and do all sorts of lude things to them all on video. It is all legal because it is on video and the women gave permission. If he did this to them without their permission or money paid, it would be sexual assault. What pornography does is send mixed signals to men and women. It should be illegal or at least regulated.

    • I don’t think that you can say that there are “different points of view,” and therefore that each point of view is valid. The only people who think that it encourages sexual assault are feminazis and christians — and even they don’t believe it. That “it encourages assault” just fits neatly in with their goals.

      • Charles says:

        I never claimed that each point of view is valid, just that there are different points of view. I was only asking if the conclusion was valid. Either pornography encourages violence towards women or it does not. The studies have different world views or outlooks on this issue. The double standard is that in one instant pornographers can do violent things to women that would be considered sexual assault in any other case. The real question is not whether pornography is legalized prostitution, but rather is pornography legalized sexual assault.

        • I am not sure what kind of porn you are watching, but lets do a bit of factual culling.

          First, lets sweep away the porn that doesn’t involve the kind of sadomasochistic behavior you are talking about… because that wouldn’t fit with your point.

          So now we’re left with S&M content.

          I presume that you’re more “vanilla” in your sexual tastes (not implying anything negative about you in saying so). Accordingly, maybe you don’t understand that there are some people for whom being tied up, being whipped, being beaten, and having legos shoved up their ass, are all PLEASURABLE. They CONSENT to this behavior because they ENJOY it.

          When an ACTOR does this on screen, they do it either because they ENJOY it, or they are PAID for it. Sorta like a boxer … they don’t LIKE being punched. They do it because it is their JOB. And… not everything you see on film is real buddy, not by a long shot.

          So yes, in porn, the ACTORS (repeat ACTORS) act out scenes that you might not like. But they are ACTORS. ACTING. MAKE BELIEVE. Guess what? Sylvester Stallone is not really a Vietnam Vet!

          It would not be considered “sexual assault,” it “depicts violent sex.” Its a MOVIE! MOOOO VIEEEEEE. It is not “sexual assault” if you CONSENT to it.

          On the other hand, if the women did not consent, then its not legalized — camera or no camera.

          Pornography no more encourages violence against women than movies about gladiators encourage people to wave swords about in sand pits.

          • Lm222 says:

            I think the fact that 90% of porn and women have to deepthroat/gag etc and do anal is classed as sexual extreme….so your argument about the ladies viewing tastes is wrong. The MAJORITY of mainstream porno is nasty, degrading and damaging. It depicts women with NO CLUE of their sexuality. Doing it for MONEY means they are NOT in control. It is NOT sexual liberation. Sex, good sex, with good people is sexual liberation.No money involved. Sexual expression takes places with someone else. NOT sitting behind your computer, jerking off, on your own to (more than likely) generally young girls, who have probably at some point in their life been fucked over by guys….leading to them trying to take back control sexually. All the time leading them done the path of further pain. Porn is a outlet for paedophiles left overs.

            Young boys grow up watching this utter crap, thinking girls should look like this, gag, take it up the ass and like it. Oh and be called sluts and whores for trying to PLEASE you. Girls are taught this is how its done. And when she does try to express sexuality theyre sluts. Im sorry but this is INSANE. Well as a SEXUALLY LIBERATED LEFT WINGER there is no way, in hell that this is any fair representation of female sexuality in any form. Its is run by a bunch of masoganistic men and female women HATERS. If this was sexual expression, these women wouldnt need to ‘act’. They wouldnt need to get plastic breasts that take away any power from the natural female form. Which is perfect. If guys who think fake breasts are a good thing have NO respect for women. Guys who continue to watch porn when it hurts their partners have NO respect for women. Of course porn could have been a healthy, productive means to add variety to real sex. Instead its been turned into the NEW RELIGION. Porn THRIVES because we’re all so screwed up about real sex, real pleasure. Theres no communication. Porn is the latest and most deadly BRAINWASHING of the masses. Well done you LIBERALS. Well done.

            • Lm222 says:

              Oh and comparing porn to a scary film??! REALLY? Well i have watched many scary films and never once dreamed of cutting someone open or doing anyone harm. Im not so sure Porn users do not wish to do those things or/and have not tried them out with women, expecting them to like it. I have been with these guys, they do exist. Men do try to do the BAD things, the HARMFUL things. It is in no way realistic to compare porn to regular movies. And just quite pathetic. When did your love of slasher films lead to an addiction of slasher films? When did any other movie break up happy homes? Encourage women to mutilate themselves to be more beautiful! GROW UP. I think we living in a world gone MAD.

          • iky says:

            I think you went full retard in this one. If they enjoy it or not is irrelevant. Half of the women don’t enjoy sex half the time. Boxers enjoy punching, not being punched. And you don’t really know if these “actors” enjoy it or not. Sometime it does look like they rather do with all the ejaculating going on (including the female). Besides, most prostitutes don’t enjoy it either. They are acting as well. Sticking a dick into someone’s pussy doesn’t constitute “acting”. It’s called fucking. And when you get paid for fucking, you get paid for fucking. Basic and simple. The only point here is that sex is something most people cannot fully control. Using something that someone cannot control for profit is immoral. And should be prohibited and punished severely. This does include porn and prostitution. Both should be either legal and severely regulated or illegal and severely punished (like death sentence, say) to discourage even trying. It’s either yes or no. (I wasn’t serious on the last one, I just find this whole argument really amusing; how lost is this world to not have simple moral issues straight so you argue on and on and on about a very simple thing, is it helpful to people or not? You are watching porn and jerking off, someone walks in. Does it make you feel good? You are married and fuck a prostitute, will you go tell your wife? Will you brag to your friends about fucking prostitutes? Not unless you and them are total duches. Porn and prostitution both are degrading, so they make you respect yourself less and make you less valuable as a member of society. Because people who do not respect themselves, do not respect others, and treat themselves and others accordingly. With no respect. Presto.)

    • heher says:

      Pornography encourages sexual assault in the same way that a violent video game encourages violence. Inanimate objects can’t encourage anything, anyway.

      Think about it this way: if everyone’s minds were really so weak as to be driven insane by mere entertainment, society as we know it would be in ruins right now. Most people view violent entertainment. Everyone would be violent.

      However, this is not the case. Such people are a statistical anomaly and only exist in small numbers. Their numbers are so small that we should not put effort into banning perfectly legitimate forms of entertainment just to ‘protect’ them.

      • heher says:

        I just saw your other comment stating that someone can’t compare pornography to violent movies. I must ask: why?

        “Well i have watched many scary films and never once dreamed of cutting someone open or doing anyone harm.”

        Precisely. Most human minds are not so weak as to be driven insane by mere entertainment. Just like violent movies don’t make you become violent, pornography doesn’t make you hate women (or men) or view them as objects. Pornography viewers who would force these acts upon women or men simply because they saw them in a entertaining video exist in very few numbers and are not worth worrying about.

        In short: the statistics simply aren’t on your side.

  24. Charles says:

    OK. I understand your point of views. Thanks. There are people who get joy from pain or submission. There are those who get joy or feelings of power from controling women and dominating them. There is a fine line between consent and sexual assault. With pornography you can call them actors, however, it is difficult at times to tell if they are acting or just having forced sex.

  25. Dan says:

    Great, with that logic I can hire a prostitute for my friend and it should be completely legal :)

  26. DaddioLove says:

    Riddle me this then.

    What if…Guy knows girl who is an absolute freak. She loves sex and gets turned on hooking up with guys she meets online. Guy offers the online hookups his services as a videographer to film the event for him, for a fee of course. Afterall, the online hookup doesn’t get alot of action and would love to have a keepsake of said event. Go/No Go ?

    • I would imagine that this would not be considered to be prostitution. All Guy is getting is fees for his videography services.

      Of course, we would want to turn on our bullshit detector. If the guy is charging $500 per hour for videography services, and he’s just using a little $300 hand held camcorder, we obviously see that something else is happening here. If he splits the take with the Freak, then there is also something happening here, right?

      But the scenario you describe seems to be kosher.

  27. rabbit says:

    I used to be in support of porn. in my opinion people should be free to do what they want. I thought, if people want to watch porn, who am i to stop them? although this doesn’t always happen, it happens enough times that it should be noted: what starts as a little softcore porn, always will lead to something a little more hardcore, a little more raunchy. Sometimes it can go to the extreme that people will be driven to actually sexually assault women. I’m not saying all or even most men will do this, but it does happen. also it should be noted that 90% of women in porn are victims of child sexual abuse. these women don’t deserve your contempt, but your pity. porn is forcing men to see women as either mothers/virgins or whores. it is making girls feel as though they need to look and act like pornstars to keep men interested in them. this is SAD for our society. men and women should be treating each other as equals. the issue of porn extends beyond the comfort and privacy of the home to all of society that in daily life is conditioned to believe that women are on the earth in servitude of men. women are real people – PORNSTARS are real people – that have feelings. people cannot forget that.

    • heher says:

      “I’m not saying all or even most men will do this, but it does happen.”

      What, you mean something can be abused by someone with a weak mind who can’t control themselves? Thanks for the obvious information, I guess. Anything and everything can be abused, but that doesn’t mean it should be banned.

      “also it should be noted that 90% of women in porn are victims of child sexual abuse.”

      [citation needed]

      “these women don’t deserve your contempt, but your pity.”

      No one said anything about contempt. I don’t hate porn actors, nor do I have a lack of respect for them. They’re like any other person to me.

      “porn is forcing men to see women as either mothers/virgins or whores.”

      No it isn’t. Pornography is mere entertainment. Do you watch a movie about someone killing others and feel the urge to do the same? Peoples’ minds are not that weak. Think of how much more chaotic our society would be if peoples’ minds were that weak.

      The statistics simply aren’t on your side here.

      “men and women should be treating each other as equals.”

      In case you haven’t noticed, in most developed countries, men and women are generally treated as equals by most people. The people who don’t are statistical anomalies.

      “PORNSTARS are real people – that have feelings. people cannot forget that.”

      No one did. You’re just using straw man arguments.

  28. E.S says:

    I once heard a man once say there are two things he wouldn’t pay for sex and water. Here is my argument when u go to the store and by a frizbee u bring it home u can do what u want to it. Have your dog chew spit on it its yours. First thing prostitution is renting for a time and it is limiting. The reason why the john is called a trick is after the feeling of orgasm wears of the money still exsists in her pearse. Then
    The reality sets in ,sense comes back to your big head I am out of dough. You are never realy satisfied because u want to bust again.(Who got played)women get impowered through sex because men want that. They want money for that favor. So now we as men play are selves for this. If sex is some thing beautiful and u now put a price on it u cheapen it. It seems money makes everything okay. Understand something people money does not gain u respect it how u earned it. If I made money paving a sidewalk I built some thing for people to use. If I made money flipping burgers, I fed people ,if I made musick entertained. Selling my ass would be for only adults.
    The professesion is exsclusive and does not promote a communial harmony. People men women and children,can walk on the side walk,eat together and listen to musick all @ the same time. Where as prostitution is this one on one service that does not spiritual connect people or even emotionaly. The woman value is just her vagina. As far as that being her choice yes it is. It would be my choice to go into Burger king and kill everybod it does not make it right. Sex like talking and communicating is vibration. Some people have negative vibration that can be passed to u just by touch. So imagine a woman taking inside her a man with a negative vibration. Now u have that in u. The purpose of determing perspective mates is to see if we can vibe. If we have similar vibration and they are high we can get together and bring another human that vibrates high and get thinks and scholars and poets and musicians taking our society to the next level. Not people who are willing to give themselves for a piece of paper that can be deemed worthless @ any time.It does not matter wether u are religous or not we all can vibrate higher without being slave to money and someone’s rule. When u sell yourself for money or anything else you are never truly free. So can u really say that u are doing what ever u want with your body. How is that freedom when u are being rented.Every one out here can’t be mulipulated with words some of us can pick sense out of nonsense.My uncle once told me u can sell shit if u put it in a pretty box with a pink bow.All that is pleasing to the eye is mostly poison to the pallet
    They live.

  29. The Pro says:

    I would like to give my input on this topic merely because this is the year 2010 and everyone needs to wake up!
    The fact of the matter is each and every person in America or any where else in the world can be called a prostitute and everyone has performed the illegal act of prostitution. Just open your mind and follow what I am saying here. How many people have had a girlfriend, a girl they was interested in? How many of you have a wife? Now how many of you have a boyfriend, a husband, or a guy you like? How many of you remember your prom? Did the man/or woman get a dress a limo a corsage, you dance the night away oh and you had sex in the limo or maybe someone sprung for the hotel. Now open your eyes and realize that was payment for the sex you received that night.
    Every time you take this woman/man out on a date, to the movies, to eat, you go to the store and buy them anything. Something romantic or some clothes, or you pay the bills or put a roof over someone head and you have sex. The sex is payment for all these things. This is prostitution. Not one person can say that they haven’t at one point exchanged sex for something else. If you went on a date and it ended with sex no matter how long you know each other it’s prostitution. Anytime you pay for something for someone else and you later receive sex at anytime this is prostitution. Anytime a wife says Honey if you do this… then I will give you some sex than this is prostitution. People need to wake up it is only sex it’s been happening since the old days back then it was popular they even had brothels. Now the prostitutes are at least being more discreet there aren’t brothels on every corner, they aren’t all over the streets anymore so why is it a problem because there are to many nosy people that watch their windows and there neighbors. People have paid for sex since people came about look in the bible Mary Magdalen not sure I spelled the name right was one of Jesus followers and guess what she was a prostitute. The times have changed but I will tell you now Prostitution is changing with the times it has been around since the beginning of time and it will stay around long after we are all dead and gone. Prostitution will probably be around until the end of time. If people would spend less time worrying about what others are doing and focusing more on their own problems then no one would hear much about prostitution you only hear about it because people and not the ones doing it are complaining about it. Truth be told they are only complaining because they themselves aren’t getting any. You hear of all these people who stay married for so long I bet there husband or wife has had an affair or has paid for sex at one point in time. It is time people face it marriage has a low success rate the marriage gets dull and boring then someone leaves. So what is the problem if your husband or wife is paying someone else to do what you won’t do as long as said person is using protection then what is the problem you won’t do it. Would you rather the other person be happy and stay married to you or them be unhappy make your life hell and it end in divorce. Another reason men and women use prostitutes is say they like rough sex the hair pulling and smacking the women or man around or the women likes rough sex and likes to smack the man around at least it keeps that man/or woman from beating your ass everyday if he or she is paying to do it to someone else that also enjoys such behavior. It’s all in how you look at it.Some women and men are prostitutes so they can support their family. Some to pay their way through school some because they are sex addict some because they were raped or molested some have respect for their bodies others don’t.Some do it for pleasure others as a way of life. I am sure that there will be many things brought to light as more prostitutes and John are arrested due to busy bodies, and nosy people. I would like to end this post with this in the bible it says let thou who has not sin cast the first stone.

  30. michael westen says:

    because all the judicial people watch porn so they don’t want it to stop

  31. Tarik says:

    The difference between a prostitute and a wife is that a prostitute sells herself each day to multiple people with whom she has no connection whatsoever. A wife has a single partner with whom she shares sex among other things such as love, family, kids, other common interests that potentially binds them together for a lifetime.

  32. Captain Quirk says:

    “The reason…is discussed in the seminal adult-entertainment case, People v. Freeman…”

    Shouldn’t that be the “semenal” adult-entertainment case?

  33. Massage says:

    Instead of bothering people who are entering into a consensual agreement for a little sexual fun

  34. […] if it’s empty.) While California smut-mongers now roll tape confidently, the other 49 states can still make this threat. That’s why, every time a newspaper publishes classified information, the government rattles […]

  35. Ben says:

    A better question would be, “Why is pornography legal but prostitution isn’t?”

  36. […] A 2008 legal account of why prostitution’s illegal but porn isn’t […]

  37. […] to replicate the infrastructure found in San Fernando Valley.  Also, Nevada does not yet have the First Amendment protection found in California under the Freeman case.  New Hampshire has this protection, and I would wager that Oregon will probably be […]

  38. stratton says:

    I don’t buy the explanation the court gave for why porn is legal while prostitution is not. To me they are one and the same. The statute in question states if you receive money for sex you’re guilty of prostitution. It doesn’t matter who pays you, or why, according to the statute. If a male and female have sex with each other at the financial behest of someone else, then both the male and female are committing prostitution, and yes, the payor is sort of acting as a pimp. The payor might also be committing prostitution if he receives sexual gratification from the act. However, I will say this- although the court’s explanation for why prostitution is illegal and porn is not does not hold up, from a health and safety standpoint I can see why porn is legal and prostitution is not. It is not good for children in the community to be walking home from school and seeing condom wrappers, or used condoms on the streets. It’s not good to allow crack addicts to sell themselves, thereby spreading disease at an alarming rate to sustain their addiction. In a nutshell, porn is more regulated, and arguably, much safer. This is the argument. However, I sort of think porn is more harmful than prostitution because a kid or an uninterested person is much more likely to accidentally come across porn than prostitution. Thus, porn is more detrimental to public morals. I also think the acts portrayed in porn is more deviant than what most Johns request when hiring a prostitute. Lastly, I think more women who would not likely become “prostitutes”, because it is unsafe and because of the stigma associated with it, would be willing to become “porn stars.” (Even though this might be wrong because many girls would probably be willing to have sex for money in private, as opposed to on film.) By the way, if a porn performer is an actress, model, or “star”, then a prostitute should be called a private porn star.

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