Get Off The Bang Bus
I've often wondered about the legal difference between prostitution and pornography.
It seems an obvious paradox that both acts are essentially the same: sex in exchange for money. However, there is of course one key difference: a camera.
Culturally speaking, this appears to be an extremely revealing detail of the modern psychology. Sex for money is legal only if it's recorded and distributed. The camera, it would seem, validates everything.
But it almost seems like a legal loophole that could be exploited. Imagine this scenario: The vice squad arrests some dude for picking up a hooker. "I wasn't soliciting sex," he claims. "I am making a porn movie." Does his claim to record and distribute the sexual act make it legal? Does he have a First Amendment case? It sounds like a glib question, but it's a legit case!
(Shhh, don't steal my idea, but I want to write a Law & Order script about this. I've already got a title: Get Off The Bang Bus.)
I've talked about this elsewhere, but the tricky part of the First Amendment in the coming years will be answering this question: what constitutes free speech in the age of personal media?
I've ranted about the slippery slope that Josh Wolf, for instance, created by essentially claiming that any act could be constituted as journalism, and hence protected by the First Amendment. If you think about the logical conclusions of that, the danger becomes clear. Would this include corporate security tapes or accidental photos? If journalism is simply saying it is, we're opening ourselves up to some slippery cases. (And don't mistake that remark as fear of actual so-called citizen journalism. That's what I want to make sure we protect!)
- There actually is no legal precedent for protecting the creation of pornography, except in California. (Keep in mind that creation and distribution are different.)
- Porn creation has never been legally tested in other states, so it might be illegal.
- This is why Cali is the porn capital.
The First Amendment will get some tricky questions thrown at it in the coming years, as one of these "personal media" cases eventually trickles its way up the Supreme Court. Given the current makeup of said body, I'm worried what the outcome will be. Sometimes, it may be better to not test the law.