What is the factor that comes into play here which makes one legal and the other not (in most states)?
They are both getting paid for performing sexual favors.
This question comes up pretty regularly. You can search the archives.
Meanwhile, long story short, American sex industry laws are antediluvian. Also, pornography is speech, and is protected by the First Amendment. Sex is just sex.
In most Western countries prostitution is not illegal per se. Where are you? Even if in the USA, it’s quite often legal within certain parameters.
As far as I know there are only a very very small number of places in the US where it’s legal within any parameters - Rhode Island and some parts of Nevada. What others are you thinking of?
The best reason for pornography to be legal is that freedom of speech is a fundamental human right and trying to restrict it based on matters of taste is barbaric. The next best reason is the fact it’s taxable and illegal industries don’t get taxed.
The best reason for prostitution to be illegal is probably the disease risk. That isn’t nearly a good reason but it’s still the best one anyone can come up with. There is a real big drop-off in quality when you look at the next and third best reasons.
But even disease isn’t a good reason – In Nevada, there hasn’t been a report of a legal prostitute with a disease since testing was made mandatory in 1986. This can mainly be attributed to the consistent use of condoms on part of the brothels.
So could a John set up a camera on a tripod and say he shooting porn just in case it’s a sting and the women is an undercover officer?
I just remembered how often this comes up here. That thread is an example, and if you scroll down a bit it links to three others.
To answer briefly, there was a court case in California that ruled that performing in a porno movie is not illegal prostitution. Consequently, the American adult film industry is centered in California and makes all its movies in a jurisdiction where it’s legal.
Try walking into a bank with a gun magazine and then with an actual gun.
Like the little kid said in the first season of Heroes, “Mom, what you in the garage, on the internet, that’s just acting.”
Because they are paid actors/models.
Porn is legal because the First Amendment protects speech unless it’s obscene, and the Constitutional standard for obscenity is a tough one. The obscenity test, solidified in the watermark Supreme Court case of Miller v. California requires a) “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Porn star Jamie Gillis once described a live sex show he was involved in where he would read aloud from works of literature while performing sex acts in an attempt to make the show non-obscene under Miller. But the First Amendment doesn’t insulate otherwise illegal conduct simply because it is part of a performance—you couldn’t literally get away with murder just by filming it. And the same goes for prostitution.
Why isn’t porn production prostitution? It’s not prostitution because the people having sex aren’t exchanging anything except bodily fluids—the producer pays both of them to have sex. Some states have statutes that prohibit such things. For example the Massachusetts statute I mentioned earlier also specifically penalizes those who “pay, or offer to pay another person to engage in sexual conduct, or to agree to engage in sexual conduct with another natural person.” But there’s a California case, People v. Freeman, in which the court, citing First Amendment concerns decided that California’s pandering (read pimping) statute did not cover paying two people to have sex with each other. After Freeman few jurisdictions have tried to prosecute pornographers for prostitution-related crimes.
and see, Porn vs. prostitution: Why is it legal to pay someone for sex on camera?
The Slate article refers to a Florida case. That case ended with several defendants pleading guilty to some financial charges. http://www.floridacriminallawblog.com/2008/06/ray_guhn_prosecution_in_pensac.html
Ray Guhn got four years: [noparse]http://www.avn.com/internet/articles/31712.html[/noparse] (NSFW advertising on page)
Legal brothels are second only to legal casinos as good business fronts for money laundering operations. (They handle tons of cash, and provide almost pure services rather than material goods.) Nevada’s law enforcement spends a lot of time and effort keeping organized crime out of their state, and their success at it is arguable. In jurisidictions where they’re illegal, the profits from these industries are money that needs to be laundered, rather than legal piles of cash that dirty money can be easily hidden in.
I’m pretty sure that taxicab companies are third–but it’s pretty hard to run a major city without allowing taxis, so you’ve just got to keep an eye on them.
It’s interesting to hear about these (sometimes strange) legal rulings, but I can’t help suspecting that the real dichotomy comes down to practicalities.
Porn, despite its popularity, remains fairly hidden away. You don’t often see a porno being filmed on your street corner, and people don’t normally show off their porn collections.
Therefore, there’s less public resistance, and since it makes plenty of tax, it’s legal.
Prositution…would clearly make a lot of tax too. But it’s too public. People just don’t like the idea of a brothel in their community. Especially since, while prostitution is illegal in most places, any state that legalises is likely to get an influx of visitors that many would see as undesirable.
And pornography is “speech” because… it’s on film? Or meant for public consumption?
If that is so, then the answer is skirting around the real issue, because otherwise a prostitute could film her encounters and sell the DVDs, and then it would become legal. The legal issue, as you said, is related to this statement of yours: “the First Amendment doesn’t insulate otherwise illegal conduct simply because it is part of a performance—you couldn’t literally get away with murder just by filming it.” The real reason is because a California court decided that me paying someone to have sex with me is a crime, but me paying two other people to have sex is not.
That’s how I understand it anyway.
That’s it. The *Freeman * Court strictly construed the terms of the pandering statute in order to avoid a constitutional issue. It did not hold that paid sex is constitutionally protected just because you film it. At all.
That seems quite skirtable too. The prostitute (now pornstar) could set up a company which pays the prostitute salary as well as a token amount to the buyer who would be cast as the second actor. Then have the buyer pay a higher amount than the token salary for the tape/photos/whatever. That money would go to the company and subsequently be the prostitutes salary. 
I’m not sure that works as a business model. First the customer has to pay significantly more, then he has to get it up and perform in front of a camera The usual business model, where the prostitute is an “escort” and sex is an extra not included in the price of the “escort service”, is much better.
So if I had a bachelor party in California for a buddy I could pay a prostitute to have sex with him and it would be legal? Or would I have to pay my buddy also?