Revisiting Prostitution

December 15, 2015

by Jay Marshall Wolman

My recent post on the Ninth Amendment got me thinking about Griswold v. Connecticut, and its progeny, including Lawrence v. Texas.  Although the latter explicitly stated it wasn’t ruling on prostitution, it didn’t say it wasn’t protected.

Assuming a logical thread from Griswold, the case law is that, basically, whatever two consenting adults choose to do in private is private and the government should not be intruding.  There are governmental interests in preventing abuse (based on consent or ability to consent) or preventing public sex, but other than that, how is prostitution still a crime?  The government has no interest in restraining two (or more) consenting adults from having intercourse.

States do have the ability to declare certain contracts unlawful–working for less than minimum wage, selling contraband–and otherwise set limits on commercial activity.  Thus, I would think that attempted prostitution/solicitation might still be lawfully prohibited (the two are still free to agree to have sex, so there isn’t a restraint a la sodomy prohibitions and attempted sodomy).  But, the actual sex act itself is private.  And, if violation of constitutional rights results in evidentiary suppression for 4th and 5th amendment violations, then evidence of the sex act itself should be inadmissible.  Once inadmissible, the prima facie case disappears and the charge should be dismissed.

I did say attempted prostitution/solicitation might be prohibited.  Marc previously distinguished prostitution and pornography, but I think that the First Amendment angle might be a way to go.  Producer A can hire Actors B & C to have sex for money, so long as it is expressive activity.  Can Producer A also insert himself into the scene with B & C or even with just B?  I don’t see why not–Jason Segel produced and acted in Forgetting Sarah Marshall and The Muppets.  Basically, so long as you film the encounter (or have a live audience), you can call it expressive activity.  And performers have been known to be the videographers–e.g. Blair Witch Project and some documentaries.  All that’s left is film distribution issues–so long as the John gets the recording at the end, but with a restriction that he and the prostitute will later have to agree on any viewing by a third person, then the pornography exemption could swallow any law regarding attempted (or actual) prostitution.

This, of course, is just an initial musing, and not a law review article or appellate brief.  But, critiques are welcome.  How am I wrong on either privacy or 1st amendment (with subsequent contractual) grounds?