jul 24

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!)

Anyway, back to porn... It turns out that the legalities are even more complicated [via]. The basics are this:

  • 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.


On the flip side, filming an otherwise legal sex act can actually criminalize it. Take a look at the John Stagliano case, for example.

It's a strange world...

posted by Eric Mortensen at 3:13 PM on July 24, 2008

I too, have wondered about the relationship between porn and prostitution. I think what makes it different, legally, is that in porn people aren't paid for sex, they're paid for "acting." It just so happens that part of the role is to have sex.

I suspect if you were cruising down a well known hooker alley and you stopped and said to a woman who you presumed to be a hooker, but was actually a police pose, "hey, how about $100 for sex?," you would be arrest. In the same situation, if you said, "hey, I'll give you $100 to star in an adult film I'm making," you probably wouldn't be arrested.

It's very screwy, as are many laws related to sex, but I think that is the core difference: paying ofr acting versus paying for sex.

Tangentially, I was talking to a family friend who is a criminal lawyer not all that long ago, and he told me about a case he had: a man in his twenties was married (legally) to a 16 year old. However, he was arrested and convicted on child porn charges for naked photos (which apparently weren't sexual in nature, just nude) he'd taken of his wife. He's now in prison. It was legal for him to marry her, legal for him to have sex with her, but not legal for him to photograph her nude. So f'ed up.

posted by Jeff Croft at 4:19 PM on July 24, 2008

Your semantic distinction isn't really a legal one though. And you might wanna ask a few sex workers how much acting is involved in the craft. What makes "acting" acting?

Again, I think it's the camera and the distribution, not the performance. And the fact that the legal burden falls on direction, not acting, seems to bear this out.

posted by rex at 4:29 PM on July 24, 2008

Good points. I don't claim to understand this stuff; I just think it's interesting. :)

posted by Jeff Croft at 5:24 PM on July 24, 2008

Interesting idea.

I was thinking that the distinction b/w legal pornography and illegal sex work also makes sense through a sorta' feminist reading - i.e. who maintains power and control over people and money. Mainly female sex workers get little while mainly male porn producers (and their consumers) get what they want.

This bit may be tangential, but the way in which the camera changes things is also interesting in terms of what you called 'turning the private into public fodder'. If, as I've been arguing, 'the online' constituted a new, reconfigured public space, then the gaze - the idea that an audience is always-already out there waiting for you - seems to change social dynamics. I was sitting in a bar yesterday, having a great time and felt the need to to twitter it. That's fucking weird. But it was like I was making it more real and more significant by making it a public text. But this sorta' relates to what you were saying about the camera validating everything - to make something public, to perform it is to legitimise it. I'd bring up Gould again, but I'm sorta' sick of it.

Anyway, as always, good stuff man.

posted by Nav at 6:03 PM on July 25, 2008

Does who is paying determine what the product is?

I mean...if you hire a prostitute, the product is definitely sex.

If you buy pornography, the product is the show.

Hmmmm...but that does that leave open a loophole? Could I hire two people to have sex in front of me, without a camera? And if I can do that, can't I just get my buddy laid using that same logic?

posted by dbsmall at 6:44 PM on July 25, 2008

It's a double-standard, not a paradox.

posted by timaladyetz at 2:54 PM on July 28, 2008

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