# Why is porn production legal but prostitution illegal? **URL:** \ **Category:** Factual Questions\ **Created:** [June 14, 2004, 8:06pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346 "2004-06-14T20:06:19Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![brianjedi](https://avatars.discourse-cdn.com/v4/letter/b/3be4f8/32.png) [@brianjedi](https://boards.straightdope.com/u/brianjedi)\ **Post date:** [June 15, 2004, 4:08pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/21 "2004-06-15T16:08:05Z")
> [@Excalibre](#): > > Sweet Jesus, how often does this come up here? I move that guests get access to the search function. Which would defeat the purpose of the subscriptions, which was to reduce load on the server by limiting server-intensive processes like searching. Price of progress is occasionally having to deal with some things repeatedly. ---
**Author:** ![Shalmanese](https://avatars.discourse-cdn.com/v4/letter/s/45deac/32.png) [@Shalmanese](https://boards.straightdope.com/u/Shalmanese)\ **Post date:** [June 15, 2004, 4:30pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/22 "2004-06-15T16:30:56Z")
So would there be anything wrong with paying a random john $100 to have sex with my prostitu… uh porn star and then charging him $300 for the video on the understanding that not accepting is not acceptable? ---
**Author:** ![brianjedi](https://avatars.discourse-cdn.com/v4/letter/b/3be4f8/32.png) [@brianjedi](https://boards.straightdope.com/u/brianjedi)\ **Post date:** [June 15, 2004, 4:39pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/23 "2004-06-15T16:39:28Z")
> [@Shalmanese](#): > > So would there be anything wrong with paying a random john $100 to have sex with my prostitu… uh porn star and then charging him $300 for the video on the understanding that not accepting is not acceptable? Well, I suppose if you spend the time and money to do all the legal paperwork, permits, etc. required to start and operate a porn studio, then it might work for about as long as it took for the cops to get wind of it. ---
**Author:** ![Shalmanese](https://avatars.discourse-cdn.com/v4/letter/s/45deac/32.png) [@Shalmanese](https://boards.straightdope.com/u/Shalmanese)\ **Post date:** [June 15, 2004, 10:20pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/24 "2004-06-15T22:20:42Z")
> [@brianjedi](#): > > Well, I suppose if you spend the time and money to do all the legal paperwork, permits, etc. required to start and operate a porn studio, then it might work for about as long as it took for the cops to get wind of it. Say the cops got wind of it, what could they do? ---
**Author:** ![Biffy\_the\_Elephant\_Shrew](https://avatars.discourse-cdn.com/v4/letter/b/e47c2d/32.png) [@Biffy\_the\_Elephant\_Shrew](https://boards.straightdope.com/u/Biffy_the_Elephant_Shrew)\ **Post date:** [June 15, 2004, 10:25pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/25 "2004-06-15T22:25:51Z")
> [@Shalmanese](#): > > Say the cops got wind of it, what could they do? Demand a discount? ---
**Author:** ![brianjedi](https://avatars.discourse-cdn.com/v4/letter/b/3be4f8/32.png) [@brianjedi](https://boards.straightdope.com/u/brianjedi)\ **Post date:** [June 15, 2004, 10:30pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/26 "2004-06-15T22:30:07Z")
> [@Shalmanese](#): > > Say the cops got wind of it, what could they do? Well, for starters, if the videos aren’t available for general purchase, then all you’ve produced is evidence against everyone involved. Also, real porn stars are going to demand verified blood tests before they’ll so much as undo a button. Thirdly, there’s no idea that someone hasn’t already tried. Someone’s done this before, I guarantee you. ---
**Author:** ![Shalmanese](https://avatars.discourse-cdn.com/v4/letter/s/45deac/32.png) [@Shalmanese](https://boards.straightdope.com/u/Shalmanese)\ **Post date:** [June 15, 2004, 10:37pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/27 "2004-06-15T22:37:41Z")
> [@brianjedi](#): > > Well, for starters, if the videos aren’t available for general purchase, then all you’ve produced is evidence against everyone involved. > > Also, real porn stars are going to demand verified blood tests before they’ll so much as undo a button. > > Thirdly, there’s no idea that someone hasn’t already tried. Someone’s done this before, I guarantee you. You mean I don’t have a right to not sell a product to people I don’t like? I think that as long as I can prove I’m not discriminating on racist/sexist etc. grounds, I’m fairly in the clear. My videos just happen to be “out of stock” all the time. I’m sure there is some barrier otherwise someone would have tried it. What I want to know is WHAT that barrier is? ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [June 16, 2004, 2:41am UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/28 "2004-06-16T02:41:51Z")
> [@Shalmanese](#): > > I’m sure there is some barrier otherwise someone would have tried it. What I want to know is WHAT that barrier is? IANAL either, but… you could run afoul of (a) Abusive and predatory business practices law (by forcing someone to buy a product at overprice); tied in with… (b) Illegal Labor Practices law, by conditioning “employment” at salary X to mandatory purchase of the company’s own product at a price that places you in indebtedness to the employer. (c) The “Reasonable Person” Test, by which the court would ask if to a Reasonable Person it would make sense for someone to do this… unless there was some reason the guy would be happy to end up $200 in the red; some reason such as having received compensation in kind in goods or services. Essentially, in legal Porn, all the players finish the day X number of dollars richer, off the pocket of the producer, who then has to see how he recovers costs and makes profit off of the market. ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [June 16, 2004, 7:01am UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/29 "2004-06-16T07:01:10Z")
There was an article in the NY Times today about a performance artist who made a video in which she had sex with an anonymous patron, who paid $230K to be in the work of art. She is a known artist. Now this could get interesting. ---
**Author:** ![scotandrsn](https://avatars.discourse-cdn.com/v4/letter/s/a4c791/32.png) [@scotandrsn](https://boards.straightdope.com/u/scotandrsn)\ **Post date:** [June 16, 2004, 2:12pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/30 "2004-06-16T14:12:25Z")
> [@Gfactor](#): > > The Hedgehog was referring to a case called _People v. Freeman_. I could not find a linkable copy of the case, but here is a [discussion](http://www.firstamendment.com/content_outside_ca.php3) of the case and others that fit right into this thread. > > A couple of points: > > 1. Prostitution is exchanging sex for money. You can’t add other stuff to the act and make it go away. Similarly, one can be charged, as Mr. Freeman was, with pandering, aiding and abetting, and other not so nice things without paying or being paid to have sex. > > 2. The \*Freeman \* case says that, at least in California, free speech concerns override prostitution laws. While I politically favor the result, I’m not so sure about the Court’s logic. I have not read the opinion in about 10 years, so I’ll stop right there. > > Hope this helps. Okay, we’ve got some more to go on, here. [Justice O’Connor’s opinion in California v. Freeman](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=488&invol=1311) > [@](#): > > The State of California requests that, as Circuit Justice, I stay the enforcement of the judgment of the Supreme Court of California… > > …California seeks review of the State Supreme Court’s judgment reversing the conviction of respondent Freeman for pandering… > > …Freeman is a producer and director of pornographic films who hired and paid adults to perform sexual acts before his film cameras. In 1983, Freeman was arrested and charged with five counts of pandering based on the hiring of five such performers. He was not charged with violation of any of California’s obscenity laws. Freeman was tried before a jury and convicted on all five counts of pandering; the State Court of Appeal affirmed the judgment of conviction… > > …On discretionary review, the California Supreme Court first considered the relevant statutory language of the State Penal Code… > > the Penal Code provides that a person is guilty of felonious pandering if that person “procure[s] another person for the purpose of prostitution. . . .” > > …Prostitution, in turn, is defined … as “any lewd act between persons for money or other consideration.” Finally, " ‘for a “lewd” or “dissolute” 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.’ "… > > …Interpreting these definitions of terms relevant to the state pandering statute, the State Supreme Court held that “in order to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification.”… > > …Applying this principle to Freeman, the court characterized the payments made to the performers as “acting fees” and held that “there is no evidence that [Freeman] paid the acting fees for the purposes of sexual arousal or gratification, his own or the actors’.” … Thus, the court held, “[Freeman] 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.” … In the succeeding section of its opinion, the California Supreme Court went on to observe that “even if [Freeman’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.”… > > …California… would have us review this First Amendment holding of the State Supreme Court. I recognize that the State has a strong interest in controlling prostitution within its jurisdiction and, at some point, it must certainly be true that otherwise illegal conduct is not made legal by being filmed. I do not, however, think it likely that four Justices would vote to grant the petition because in my view this Court lacks jurisdiction to hear the petition. It appears “clear from the face of the [California Supreme Court’s] opinion,”… that its analysis of the pandering provision of the State Penal Code constitutes an adequate and independent state ground of decision. Interpretations of state law by a State’s highest court are, of course, binding upon this Court… Here, the California Supreme Court has decided that Freeman’s hiring and paying of performers for pornographic films does not constitute pandering under… the California Penal Code. That is an adequate ground for reversing Freeman’s conviction… > > …As I read the State Supreme Court’s opinion, it is independent of federal law as well. This Court has held that where a state court has " felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did . . . we have jurisdiction and should decide the federal issue; for if the state court erred in its understanding of our cases and of the First and Fourteenth Amendments, we should so declare, leaving the state court free to decide . . . ‘suits according to its own local law.’ " … This does not appear to be such a case. > > The discussion section of the California Supreme Court opinion is divided into two subsections, the first titled “The Statutory Language,” the second titled “First Amendment Considerations.” The state court’s discussion of the language of the Penal Code, which concludes with the clear holding quoted above, is not “interwoven with the federal law.” …Discussion of federal law-specifically the First Amendment-is strictly confined to the second subsection and constitutes an independent, alternative holding. Were we to review the state court’s decision and hold that it had misinterpreted the strictures of the First Amendment, on remand the court would still reverse Freeman’s conviction on state statutory grounds. This is precisely the result the doctrine of adequate and independent state grounds seeks to avoid. … (“We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion”)… > > … There is language early in the California Supreme Court’s discussion section observing that “the prosecution of [Freeman] 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.” … Nevertheless, in light of the subsequent clear holding based exclusively on the state pandering statute, as well as the State Supreme Court’s doubts in its discussion of the First Amendment whether “[Freeman’s] conduct could somehow be found to come within the definition of ‘prostitution’ literally,” … I conclude that the state court’s statutory holding is independent from its discussion of the First Amendment and was not driven by that discussion. Because the decision of the California Supreme Court rests on an adequate and independent state ground, the State of California’s application for a stay of enforcement of the judgment of the California Supreme Court is denied. > > So ordered. I have removed citations and line numbers of state penal code in an attempt at increased readability. I had the year wrong, and Jeremy had the details wrong. As I read this, since the film being made was not deemed to be obscene, and Freeman was not paying to engender arousal in himself or the actors, what he was doing was not pandering, at least as far as California statutes define it. The Supreme Court decided not to get involved. **So, in general, unless you, the funder of a non-obscene pornographic film, get it on with your actors explicitly in exchange for their performance fees, you can make porn legally in California. at least until we overhaul the language of the prostitution laws.** Since legal porn brings Big Bux[sup]tm[/sup] to the state, don’t hold your breath. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 16, 2004, 3:45pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/31 "2004-06-16T15:45:36Z")
> [@scotandrsn](#): > > As I read this, since the film being made was not deemed to be obscene, and Freeman was not paying to engender arousal in himself or the actors, what he was doing was not pandering, at least as far as California statutes define it. > Since legal porn brings Big Bux[sup]tm[/sup] to the state, don’t hold your breath. Ya never know. Remember, California recently tried to prosecute a porn producer for obscenity. [http://www.pbs.org/wgbh/pages/frontline/shows/porn/prosecuting/casetowatch.html](http://www.pbs.org/wgbh/pages/frontline/shows/porn/prosecuting/casetowatch.html) [This link is on the pbs web-page, but it contains a blurred image of a porn video box. The page has some sexual content.] ---
**Author:** ![scotandrsn](https://avatars.discourse-cdn.com/v4/letter/s/a4c791/32.png) [@scotandrsn](https://boards.straightdope.com/u/scotandrsn)\ **Post date:** [June 16, 2004, 3:56pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/32 "2004-06-16T15:56:00Z")
> [@Gfactor](#): > > Ya never know. Remember, California recently tried to prosecute a porn producer for obscenity. [http://www.pbs.org/wgbh/pages/frontline/shows/porn/prosecuting/casetowatch.html](http://www.pbs.org/wgbh/pages/frontline/shows/porn/prosecuting/casetowatch.html) [This link is on the pbs web-page, but it contains a blurred image of a porn video box. The page has some sexual content.] But you need to realize, in California, porn can be classified as obscene or not, as [this interview](http://www.pbs.org/wgbh/pages/frontline/shows/porn/interviews/sanchez.html) from your link goes to show. (WARNING: EXPLICIT DISCUSSION OF CONTENTS OF PORN VIDEOS) It’s not obscene just because it’s porn. ---
**Author:** ![monica](https://avatars.discourse-cdn.com/v4/letter/m/a183cd/32.png) [@monica](https://boards.straightdope.com/u/monica)\ **Post date:** [June 16, 2004, 6:35pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/33 "2004-06-16T18:35:02Z")
So say Mr. X is the producer of a porn movie, and therefore pays the actress to be in it. Now, say that Mr. X decides to star opposite her. In that case, wouldn’t he be paying her to have sex with him? And is that not prostitution? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 16, 2004, 8:31pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/34 "2004-06-16T20:31:27Z")
> [@monica](#): > > So say Mr. X is the producer of a porn movie, and therefore pays the actress to be in it. Now, say that Mr. X decides to star opposite her. In that case, wouldn’t he be paying her to have sex with him? And is that not prostitution? The logic of _Freeman_ suggests that as long as he was not paying her for sexual arousal or gratification. Those were incidental to the real objective–to make a movie. > [@](#): > > But you need to realize, in California, porn can be classified as obscene or not, as > this interview from your link goes to show. (WARNING: EXPLICIT DISCUSSION OF CONTENTS OF PORN VIDEOS) > > It’s not obscene just because it’s porn. I do realize that. But the fact that California makes money on porn has not stopped the authorities from prosecuting one of the biggest fish in that pond. That was my point. ---
**Author:** ![duffer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duffer/32/1026_2.png) [@duffer](https://boards.straightdope.com/u/duffer)\ **Post date:** [June 16, 2004, 8:53pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/35 "2004-06-16T20:53:21Z")
I wonder if this would work. Say I want to produce a porn video. I find 2 actors to agree to star in it and pay them. Now, because there will be sex scenes, I decide it’s best to determine if the woman is going to be capable of making it work. (Kind of like an actor reading for a part). Then I either go ahead with the shoot, or cancel it because she wasn’t right for the movie and scrap the project alltogether. I can see possible problems depending on the state and it’s union laws, and I’m sure there’s a glaring hole (hehehe) in my reasoning. Would that work? Is there enough of a basic idea to work with? ---
**Author:** ![Alan\_Smithee](https://avatars.discourse-cdn.com/v4/letter/a/2acd7d/32.png) [@Alan\_Smithee](https://boards.straightdope.com/u/Alan_Smithee)\ **Post date:** [June 17, 2004, 1:09am UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/36 "2004-06-17T01:09:41Z")
**duffer** , did you read the previous posts? If you are paying for sexual gratification, it is pandering. If you aren’t, it isn’t. The police, prosecutors, etc. will look at evidence as to whether you really intended to shoot the film (e.g., you are a professional pornographic film-maker, you have the equipment necessary to shoot the film and a reasonalble account of a plan to market said film, your activities were not at clear varience with the normal procedure for pornographic film-makers, etc.). If you really **are** a pornographic film-maker, there would be some risk of prosecution that may cause you to find an alternate method of casting, but you would most likely be ultimately cleared of any charges that would be filed. If you are **not** a pornographic film-maker [Now that I think about it, should that be “pornographic-film maker”? Oh well, too late to change it now.] then the cost of setting up the requisite sham bussiness (which may make you eligible for fraud charges) would almnost certainly be higher than the cost of travelling to Nevada or Amsterdam and engaging in legal sex with a prostitute, and the risk of being prosecuted and convicted would **still** be far greater (owing to the publicity and other evidence against you that you would necessarily create in setting up your alibi) than the risk of simply engaging in illegal sex with a prostitute (which is relatively very unlikely to be noticed by police). ---
**Author:** ![scotandrsn](https://avatars.discourse-cdn.com/v4/letter/s/a4c791/32.png) [@scotandrsn](https://boards.straightdope.com/u/scotandrsn)\ **Post date:** [June 17, 2004, 2:30pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/37 "2004-06-17T14:30:12Z")
> [@Gfactor](#): > > I do realize that. But the fact that California makes money on porn has not stopped the authorities from prosecuting one of the biggest fish in that pond. That was my point. Yes, but MY point was that, at least on the surface, it wasn’t an attempt to stem the tide of pornography. According to the interview with the city attorney, Glasser was prosecuted because he crossed a well-known and well-established line, not because he’s a successful pornographer. In his own interview, he admits knowledge of the line, and simply rejects it as a legitimate concept. As spelled out by both of them, the existing rule is that there are certain acts that do not belong in adult entertainment. I agree with most of them, although the act for which Glasser was being prosecuted probably arises from homophobia. The Freeman ruling did not negate the idea of prosecutable obscenity. All I was saying was that since the peculiarities of the prostitution laws led to the judgment in the Freeman case, and the Freeman case renders porn legitimate business, and legitimate businesses must pay state taxes for any number of things, I wouldn’t look for a change in the prostitution laws. ---
**Author:** ![scotandrsn](https://avatars.discourse-cdn.com/v4/letter/s/a4c791/32.png) [@scotandrsn](https://boards.straightdope.com/u/scotandrsn)\ **Post date:** [June 17, 2004, 2:36pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/38 "2004-06-17T14:36:28Z")
To add to my previous post, it’s been fifteen years since Freeman. If the state wished to shut down pornography, they could have closed the Freeman loophole by rewording the laws. the city could have easily passed an ordinance as to what activities were acceptable within city limits, and porn would have to have moved out of Los Angeles. They have not seen fit to do so, and were rather lax on enforcement when, prior to Freeman, it was assumed that porn production was a form of prostitution here. One obscenity prosecution (especially one whose motives are within existing precedent) does not an anti-porn crusade make. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 17, 2004, 2:37pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/39 "2004-06-17T14:37:17Z")
> [@scotandrsn](#): > > Yes, but MY point was that, at least on the surface, it wasn’t an attempt to stem the tide of pornography.I wouldn’t look for a change in the prostitution laws. Fair enough ---
**Author:** ![scotandrsn](https://avatars.discourse-cdn.com/v4/letter/s/a4c791/32.png) [@scotandrsn](https://boards.straightdope.com/u/scotandrsn)\ **Post date:** [June 17, 2004, 2:42pm UTC](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346/40 "2004-06-17T14:42:57Z")
> [@Gfactor](#): > > Fair enough Glad we’re cool. 🆒 [Previous page](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346.md?page=1) [Next page](https://boards.straightdope.com/t/why-is-porn-production-legal-but-prostitution-illegal/250346.md?page=3)