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Porn vs. ProstitutionWhy is it legal to pay someone for sex on camera?

By Michelle Tsai
Posted Friday, March 14, 2008, at 5:13 PM ET

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Ashley Dupré. Click image to expand.

Every time a politician is caught with an expensive prostitute or just with his legs in a wide stance, Explainer readers have asked why laws don't treat pornography and prostitution the same way. Having sex on camera for an adult film generally won't get Jenna Jameson in trouble, but doing it with a john is illegal everywhere except in parts of Nevada. What's the difference between porn and prostitution?

Porn stars are paid to act (really); prostitutes are paid for sex. Performers may engage in sex as part of their roles—they presumably follow a script—but that doesn't count as sex for hire. Sex in the course of creating a movie or a photo is just plain old expression, protected under the First Amendment. (Click here for an excellent review of this distinction by Sherry F. Colb.) Free-speech advocates argue that this ought to hold true for "gonzo" films, in which the person behind the camera also joins in on the action; no significant cases have gone to court, however. Compared with sexually explicit media, though, live sex shows have received less protection. But the Supreme Court in Oregon did overturn two state laws concerning sex shows, on free speech and expression grounds, in 2005.

The porn-or-prostitution issue came up in the 1980s, when California prosecutors argued that an adult film producer named Harold Freeman was guilty of pimping because he had hired five women to perform sex acts for a movie called Caught From Behind II. The state's highest court ruled that anti-pandering, or anti-pimping, laws weren't intended to apply to porn films and that Freeman's acting fees weren't paid "for the purpose of sexual arousal or gratification, his own or the actors'." (The sexual gratification of people who watched the movie was irrelevant.) The court also said that even if the actors had engaged in prostitution, applying the anti-pandering laws to skin flicks would impinge on the First Amendment.

Pornography has enjoyed First Amendment protection since the 1950s. In the early 20th century, pornography was considered obscene, yet it was also relatively rare. It wasn't until adult movies became more widespread that authorities paid more attention. In a 1957 Supreme Court case, Roth v. United States, Justice William Brennan not only wrote that obscenity wasn't protected by the First Amendment, but also narrowed the definition of obscenity, effectively legitimizing most pornography.

So, what's obscene pornography? The standards changed with different court cases through the years. The test established by the Roth case asked whether the material as a whole appealed to an average person's prurient interests. A Massachusetts case involving the book John Cleland's Memoirs of a Woman of Pleasure resulted in a three-pronged test: A work was obscene if it appealed to prurient interests, offended community standards, and had no social value. Prosecutors realized, however, that everything could be construed to have some social value. Thus the current standard, called the Miller test, now specifically singles out work that lacks any serious literary, artistic, political, or scientific value.

Since California v. Freeman, prosecutors in other states have largely avoided challenging the distinction between prostitution and pornography. The legal buffer afforded by that ruling allowed the adult-film industry to proliferate in the Golden State. If a similar decision were handed down in another state, it might attract unwanted business from the porn industry. (The prostitution-vs.-porn question will go to trial this spring in a pending Florida case, however.)

Got a question about today's news? Ask the Explainer.

Explainer thanks David Hudson of Vanderbilt University Law School, Donald Marks of Marks & Brooklier, Louis Sirkin of Sirkin Pinales & Schwartz, and Larry Walters of Weston, Garrou, Walters & Mooney.

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Michelle Tsai is a writer living in Jersey City, N.J.
Photograph of Ashley "Kristen" Dupré from her MySpace page.
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