1:48 PM :: Stephen (contact)

Pornography and Prostitution: It's a question for the ages, but I haven't been able to come up with an answer. Why is the commercial manufacture of pornography legal?

Consider the nature of the transaction. Person A (the director or producer) gives person B (actor/actress #1) a certain amount of money in exchange for engaging in sexual conduct with person C (actor/actress #2) in front of a camera. We have a name for transactions like that, and the name is "prostitution." Indeed, Missouri Revised Statutes chapter 567.010(3)(b) defines a person as "patronizing prostitution" if he "gives or agrees to give something of value to another person on an understanding that in return therefor that person or a third person will engage in sexual conduct with him or with another."

Patronizing prostitution is a class B misdemeanor in Missouri, and persistent offenders can be convicted of a class D felony. I'd imagine similar laws exist in almost every jurisdiction in the United States, except maybe Nevada. Moreover, under federal law (18 U.S.C. 2422), it is illegal to persuade any individual to travel in interstate commerce in order to engage in prostitution--punishable by up to 10 years in prison. So why has no enterprising family-values D.A. (or Attorney General John Ashcroft) sought to break up the porn industry by throwing all the pornographers in jail?

The answer can't be because of any First Amendment protection. At most, the freedom of expression would permit the sale or possession of the depiction of certain acts (though this does not extend to child pornography made with actual children); it does nothing to protect the underlying acts themselves. If it's illegal to pay someone to have sex, it's illegal to pay someone to have sex on film. Surely a person convicted of check fraud could not seek First Amendment protection for his actions because he had committed his crime on camera. (Nor could the murderers of Daniel Pearl claim as a defense that they had intended their abhorrent video for sale.) Thus, even if the sale or possession of pornography were protected by the Constitution, its manufacture would not be.

So how has pornography survived legal challenge? Given the Missouri law, I can see only a handful of ways that would-be pornographers could escape liability. First, they could operate solely within Nevada, or other jurisdictions with relaxed prostitution laws, and then sell their products nationwide.

Second, they could produce pornographic material through digital imaging, without involving the use of real actors. As the Supreme Court has ruled, such material receives full constitutional protection: "In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production."

Third, on Missouri's definition, prostitution only takes place when one person engages in sexual conduct with another. Explicit material which features only a single actor or actress would therefore be legal under the definition (albeit presumably less interesting to its consumers).

Fourth, the Missouri statute covers only the commercial manufacture of pornography. If an individual chose freely to engage in sexual conduct with a third party, and later chose to distribute the material for free over the Internet (which, to judge from the content of spam email, appears to be a surprisingly common practice), there could be no accusation of prostitution, although the third party would have a pretty good invasion-of-privacy claim. In fact, it may be permissible for the two to sell their video on the market and split the profits, so long as any "thing of value" is only promised in exchange for permission to distribute the video, not for the sexual acts themselves. Perhaps it would be possible for a group of individuals to form, say, a Porn Actors' Collective, in which the profits of distribution are shared. However, if the enterprise involves the ongoing production of material, rather than the mere distribution of recorded past acts, it may be possible for prosecutors to demonstrate an "understanding" that money would change hands. (Related note to those who know more about copyright law: who is the 'author' of a motion picture, where authorship has not been established by contract? Is it just the person behind the camera? Or the producer who fronts the money? Or all the participants jointly, including the actors, the sound technicians and the costume designers?) To be honest, I know virtually nothing of the corporate structure of pornography enterprises, but I wonder whether they have taken such concerns into account.

In any case, although I've seen some attention to this problem by others, I've never read a definitive explanation (and I'm somewhat hesitant to broaden my search). Any suggestions by those more well-versed in such issues would be welcome.