No, Porn is Not Prostitution – and you can film it anywhere in America

freedom to film porn

The “Condom Wars” in California are about to come to a head. Prop 60, if it passes, will mandate condoms in adult film production (among other things). The industry has threatened to leave California, en masse, if it does pass.

Those who support the measure (pretty much just the zombie-like jackass who stands to profit from it) claim that the industry can’t leave. They , and some of their toadies, claim that the only states where you can shoot porn legally are California and New Hampshire. They claim that it is considered to be “prostitution” in all other states.

I’ve tackled this trope before in blog posts. But, I finally got sick enough of hearing this stupid shit that I wrote a law review article on it: This will explain to you why porn is not prostitution, and why you can shoot anywhere in America. It also tells you a bit about the Condom Wars.

See The Freedom to Film Pornography. Download it, read it, study it, and tell the next idiot who tells you that you can only shoot porn in CA and NH that they're full of shit. Or, the next time someone asks "why isn't porn prostitution?" explain this shit to them — because I'm sick of explaining it.

Last 5 posts by Randazza

Comments

  1. Spud Hosnick says

    So, were a whoremonger to hire someone for sex, pay extra for them to sign a model release, do the deed in front of a running camera and post the results to YouPorn.com, would they have to worry about prosecution for paying for sex?
    This "workaround" would seem to be rather narrow, except for people who don't mind others knowing of their affairs. I suspect that most whoremongers are probably better at buying sex than selecting camera positions and postures that will obfuscate or even hide their identities.

  2. Quiet Lurcker says

    "Those who support the measure (pretty much just the zombie-like jackass who stands to profit from it) …"

    I would be curious to learn if that "jackass" (your terms) is truly alone in his thinking. On second thought, make that "if he *and I* are alone in *our* support", etc.

    Mind you, I'm not in position to gain or lose anything from this proposition, except in so far as it has a possibility of curtailing the spread of STD's and unwanted pregnancy, if only in a small portion of the total population. But that right there is enough for me to be going on with.

  3. says

    Adding a camera to a crime doesn't make it any less a crime. If it is prostitution + camera it is still prostitution. If it is acting + sex that doesn't make it prostitution.

  4. Boblipton says

    So, Marc, it's the acting that makes it protected speech? "I want you to act that you're glad to be with me. There's an extra ten in it for you."

    Has anyone argued that the "sexualgratification" is on the part of the viewers of the pornography, and that makes it prostitution? Or does the legality of the film/tape/disc render that a dead argument from the git-go?

    Bob

  5. En Passant says

    Quiet Lurcker says November 4, 2016 at 3:37 pm:

    Mind you, I'm not in position to gain or lose anything from this proposition, except in so far as it has a possibility of curtailing the spread of STD's and unwanted pregnancy, if only in a small portion of the total population. But that right there is enough for me to be going on with.

    Read the proposition. It's only 5 pages of fine print in your state voter guide.

    Prop. 60 will require everybody, even long married and monogamous couples, who record and publish their sexual activity to use condoms.

    It will require anyone who records and publishes an adult film to obtain a license every two years from Cal OSHA, and to provide extensive information to the state before every film shoot.

    The statute puts the burden of proof on the producer to prove condoms were used properly.

    It permits a right of private action so that any wowser who sees a pornographic movie but does not see a condom can sue the producer, actors and crew if Cal OSHA does not take action within 21 days of receiving the wowser's complaint.

    If you think the Prop. 60 is about preventing disease, or performer safety and health, think again. It's about enabling and promoting wowsers.

  6. En Passant says

    I just finished Marc's Nevada Law Review article. Scholarly excellence with a delightful garnish of witty word play.

    I liked "Porn up against Wahl". and "The detectives then issued a writ of coitus
    interruptus
    …"

    And even the word "seminal" appears once.

  7. Malc. says

    Quiet Lurcker says at November 4, 2016 at 3:37 pm

    No, Prop 60 doesn't even have the slightest possibility of "curtailing the spread of STD's and unwanted pregnancy" in any part of the population, and if you think that, you're gullible and ill-informed. The reality is that porn actors are the best tested, best protected group of sexually active people in the country, with the possible exception of licensed prostitutes in Nevada.

    But from any kind of libertarian/small government perspective, Prop 60 is a disaster. It anoints one named individual as the supreme authority for all porn production oversight, and it would take a 2/3rds majority in BOTH chambers in Sacramento to displace this man… even if he does nothing, or abuses his authority, or generally acts like a jackass.

    Think about that.

    Weinstein (the jackass in question) is creating a state job for himself from which he can only be fired if both houses vote with a 2/3rd majority to do so. (Section 10 of the Initiative text).

  8. Simon Spero says

    I was going to make a pedantic point about how you can't shoot porn anywhere in America, because zoning, but the article mentions zoning regulations for Clark County, so fuck that.

    However the article does not address the critical issue in Porn Production : does Internet Rule 34 apply to FRCP Rule 34?

  9. Bob says

    Woah, I didn't realize how expansive prostitution statutes can be. Is it statutorily illegal for a girlfriend to put out in exchange for a necklace? Sheesh.

    Incidentally, just looked up Weinstein for the first time, guy's face looks like a spent condom.

  10. Radium says

    I prefer to shoot porn here in Texas, because that means the evil soulless government can't take away my gun! Yet!

  11. Patrick Maupin says

    @Marc Randazza:

    Awesome job, hella lotta work. In addition to the language easter eggs, I noticed what appeared to be a few homages to other blawgers, too…

    @Spud Hosnick, @boblipton — Great choice, showcasing your brilliance by asking stupid rhetorical questions (conflating porn and prostitution) that are completely answered in the article.

    @Quiet Lurcker — go fuck your totalitarian self.

  12. annoyamous says

    @Quiet Lurcker — go fuck your totalitarian self.

    If Quiet Lurcker did this and posted the video, would Prop. 60 require him/her to wear a condom?

  13. Rosenfeldt says

    After reading your article, it seems to me that most case law only speaks to non-obscene material. Virtually every precedent you bring up leaves the door wide open for banning and prosecuting the making and distribution of "obscene" material.

    Is it really just the Miller test brought up in footnote 86 that stands between a porn producer and jail? "appeals to the prurient interest, depicts or describes sexual conduct in an offensive manner under applicable state law, and whether, as a whole, the work lacks serious literary, artistic, political, or scientific value" – that seems worth a shot for many a zealous prosecutor, doesn't it? How is this handled in practise? What is currently qualified as "obscene" material?

    Thank you for providing this great and very useful summary of the status quo free of charge, btw!

  14. says

    Ugh, don't get me stared on why I think the Miller Test is unconstitutional. I did have to, for the purposes of this article, accept the settled law that it is constitutional.

  15. IForgetMyName says

    Prop 60: Conceived when the liberal need to regulate the fuck out of any sort of industry for its own good has unprotected sex with the conservative need to regulate the fuck out of any sort of indecency for the children's sake.

    Also, the best illustration that bipartisan cooperation might not be something we want.

  16. Simon Spero says

    Prop 60: Conceived when the liberal need to regulate[…]

    Conceived doesn't seem to be the right word here.

  17. NickM says

    Marc – if it passes, a new porn production company called something like "Let's Make A Baby Films", which shoots sex videos of couples who are trying to get pregnant, would make a great plaintiff.

  18. OrderoftheQuaff says

    I don't watch porn very often, and on those occasions it was because my host had something to show me, but I oppose Prop 60 for all the sound reasoning stated. As an old, I can remember when porn was illegal in all 50 states, and now they have conventions in Vegas. You know what? There were still porn flicks back then, they were just made underground and sold in retro sleazy bookstores. You know what else? If people want to see naked dick, and apparently there are a lot who do, entrepreneurs will arise to serve them legal or not, and they know how to do unobtrusive, low-budget, location nonspecific (mostly interiors) porn shoots. I will conclude with my own porn movie pitch, The Extra-Large Pizza Man, which begins…

    Int.House.Day

    [Two knocks at the front door. A hot young woman of at least 18 years of age in a Catholic schoolgirl outfit opens it; there's a man with a pizza box on the other side.]

    PIZZA MAN: Here's your pizza.

    WOMAN: Won't you please come in? I need to get my purse from the nightstand in my boudoir. Just have a seat over there in my breakfast nook, underneath the cabinet with the bourbon and shotglasses in it.

    PIZZA MAN: What's a boudoir?

    WOMAN: You're about to find out, now, just do as I tell you.

    Can any of you more experienced porn cineastes tell me if this has already been done? Yes of course, they will be smearing warm pizza on each other's privates.

  19. Rosenfeldt says

    @IForgetMyName, @TheLizard
    How about we stick to the facts and acknowledge those rare instances when the powers that be do something right for a change? Last time I checked both Democrats and Republicans vehemently opposed Prop 60. Sure, let's not kid ourselves into thinking this is the result of some kind of principled approach on the fundamental issue. They simply don't agree with the additional budget expenses, the custom office for the drafter and the specific wording. But the fact of the matter is still that this is not a bipartisan initiative. This is a zero-partisan initiative driven by some greedy fringe fundamentalists.

  20. En Passant says

    OrderoftheQuaff says November 5, 2016 at 10:29 am:

    … I will conclude with my own porn movie pitch, The Extra-Large Pizza Man, which begins…

    [Puts on soothsayer hat, peers into crystal ball.]

    Your script will encounter stiff competition.

    [Caution: link definitely NSFW. Conduct yourselves accordingly.]

  21. IForgetMyName says

    @Rosenfeldt:

    How about we stick to the facts and acknowledge those rare instances when the powers that be do something right for a change? Last time I checked both Democrats and Republicans vehemently opposed Prop 60.

    Fair enough. Consider me properly chastised.

    That said, normally when I try to be incredibly precise with my language, noting for even the most dense reader that I'm grossly generalizing liberals and conservatives, that I acknowledge neither side is monolithic, and that many people don't consider themselves particularly aligned with either side, my comments end up longer than the original article, and that my comment is meant to be more a (hopefully) humorous rant that doesn't strictly reflect reality, I end up writing a comment that's longer than the original article. It's a flaw that was barely constrained by local rules and the attorneys supervising me back when I was in litigation, and one I'm usually too lazy to try to correct when I'm online. Getting a response like yours the one time I make a good attempt at brevity makes me wonder why I bother.

    Also, the polling showed general support for Prop 60 hovering around 50%. I'm not particularly familiar with California politics, so I'll take your assertions about the rank and file Democrats and Republicans at face value. However, you'll note I didn't say Republicans, or Democrats, or career politicians, or current elected officials. I said "liberals" and "conservatives." While I'll be the first to acknowledge that those terms are limited in their precision and thus their usefulness, I think it's fair to say that if 50% of Californians support something, that number probably comprises more than a decent proportion of folks who self-identify as either liberal or conservative.

    And just to soapbox a bit more, that's why I think a more libertarian perspective is so important. Yes, elected officials on both side will tend to want to increase their own power, which in general comes at our expense. However, there is a tendency on both sides, even among average citizens, to be reckless about increasing government power in the interest of achieving a goal–the two sides just value different things.

  22. IForgetMyName says

    @Simon Sperro

    Conceived doesn't seem to be the right word here.

    I'm sad you didn't give me credit for "regulate the fuck out of" the pornography industry.

  23. Spud Hosnick says

    @Patrick Maupin;

    No, not completely answered in the article, which I read all of; I just didn't properly articulate the situation. POV (point of view) porn seems to be in these days, to some extent. In POV, the person holding the camera is having sex with the "other performer." I suspect these are low-budget productions, where the camera operator/producer/male performer are one in the same.

    I'm only interested in this as an academic exercise and I'm looking for a corner case.

    I've also read recently that many-to-most porn performers are also engaging in (well-paid, branded, if you will) prostitution off-camera, which the article I read said was a new development, as money for being in porn, we are told, is going down due to free sites on the Internet.

    So, the POV producer hires a prostitute (who may already be a porn performer) to have, in essence, have sex with him on camera. I suspect that only certain scenarios are apt for POV, and I propose that those acts (Bill Clinton aside) are characterized as "sex."

    By hiring the person to have sex with you on camera with a model release, in a private setting, are you effectively 'sheep-dipping' the prostitute as a performer?

    It is not hard to imagine that a prosecutor inspired by Ed Meese (who put clothing on a statue in Main Justice because the stone was otherwise nude, so anti-porn is he) wouldn't try to prosecute this.

    Of course, good work for porn defense attorneys …

    Now, If I were to try this, I'd do it in Mexico or Germany, where there either isn't a law that permits prosecution of prostitutes or customers, or where prostitution isn't illegal.

    So, the producer recruits

  24. Nobody says

    Isn't prostitution legal in Nevada outside of Las Vegas? Wouldn't that stick a knife in the whole CA/NH argument right out of the gate?

  25. Patrick Maupin says

    @Spud Hosnick:

    I see — my bad, reading comments before the coffee kicked in.

    Actually, your proposed workaround could be a lot of work (doing all the legitimate porn stuff like STD testing, as well as the releases, etc.) but it seems it could be quite practical for a guy who is really worried about being busted for prostitution. For a start, especially if the guy is holding the camera so he's never in frame, and especially if he live-streams the video, and perhaps uses electronics to disguise his voice, and gets the model release and driver's license and explains everything up-front — what serious undercover policewoman is going to want to be in frame, never mind hand over a SSN for the 1099?

    Hell, if porn producers use Hollywood accounting, none of the movies will be showing a profit anyway, so this wouldn't even be all that different.

  26. says

    What a grown man does with three dwarves, a tub of industrial mayonnaise and a high-definition camera in the privacy of his home should be his own damn business.

  27. says

    Clearly you have not done the reading before trying to join in the discussion. So you have no frame of reference here. You're like a child who wanders into the middle of a movie and wants to know…

    Here, read pp 18-19

  28. Spud Hosnick says

    @Patrick Maupin;

    An awful lot of trouble to go through for a piece of @zz. STD testing is only required in LA county, that I know of, and then there are the filming permits. You could even live-stream the whole encounter (I guess with a clipboard-wielding production assistant to handle the model release) up to the moment of the bust. I wonder if the YouPorn type sites yet offer "amateur porn live?" They could charge a premium for that to boot.

    And, let's not be judgemental; the 'provider' could just as easily be male.

    I doubt that they pay residuals in porn.

    @Mark Wing;

    Would only having a Standard Definition (or 4K camera) be a deal-breaker? Is the tub so big that dwarves can't stand in it?

  29. Patrick Maupin says

    @Spud Hosnick:

    And, let's not be judgmental; the 'provider' could just as easily be male.

    Not being judgmental (I agree with Mark Wing); simply expressing my understanding of the odds. xir understanding may be different.

  30. Rosenfeldt says

    @IForgetMyName
    I didn't even want to particularly critize your first paragraph. It's an astute observation how this might fall into a strange intersection where both liberals and conservatives see a need for (rather pointless) regulation. I enjoyed that!

    I was latching onto your last sentence implicitly declaring Prop 60 a bipartisan cooperation. Maybe I'm wrong or pedantic, but to me in US politics "bipartisan" usually means "supported by both the Republican and Democratic Party" more than it means "supported by liberal and conservative voters".

    I'm sorry if I came across overly harsh, but I felt like you were being a bit unfair. Both when it comes to Prop 60's inception and its current support it's surprisingly the opposite of a bipartisan cooperation. In fact the bipartisan cooperation is the campaign against Prop 60. It only happens once in a blue moon that both parties agree on an issue that is not related to veterans and then it happens to be on pornography of all topics? I thought it deserved recognition, not bashing. Again, the cooperation is probably not because of the issue itself, but it should give you a good idea of how poorly drafted the damn thing is.

    Fair disclaimer: I'm a big believer in cooperation above partisanship. Sure, it won't make everyone happy. But then again – a well negotiated settlement should be painful for both sides and still be the best way forward.

    Also, don't worry about the length. I suffer from the same defect. But at the same time it's the essence of communication. Our thoughts and intentions are usually clear, but we can't directly share them with other people. We have to squeeze them into ambiguous words and hope they evoke the same thoughts we had when writing them. Believing that fewer words in general somehow constitute clearer and better communication is a silly notion.

  31. Encinal says

    But, I finally got sick enough of hearing this stupid shit that I wrote a law review article on it: This will explain to you why porn is not prostitution, and why you can shoot anywhere in America.

    Really? Seriously? You were sick of those great unwashed masses expressing bemusement at a seemingly nonsensical distinction, and you thought “Gee, I should write a rambling, 42 page essay on the history of pornography and litigation regarding it. Surely the sort of people I'm dealing will be more than willing to read the whole thing through”?

    The arguments seems to:
    1. California law requires sexual arousal.
    This doesn't really address whether pornography is prostitution, so much as whether the particular statutes that California has chosen to adopt has a loophole that pornographers can exploit. Moreover, while the arousal of the participants may not be the end goal, a large portion of pornography does include the (at least physical) arousal of a man.
    2. The payment is for the right to film the performance, not for the performance itself.
    While I'm sure there are cases of pornography that consist of filming conduct that would have otherwise existed, most pornography consists of filming conduct that only exists because of a financial incentive provided by the producers. This is like saying that when you buy a ticket to watch a boxing match, you're not paying the boxers to fight each other, you're simply paying for the right to watch them do so.
    3. People have a constitutional right to experience people having sex.
    This argument requires us to accept that the sense of sight and sound are somehow privileged over touch; I have a constitutional right to see a breast, but not to feel one. The entire concept of prostitution laws is based on the idea that government is allowed to completely shit over the concept of personal rights, so it is natural to wonder why the concept of personal right suddenly becomes compelling in the case of pornography.
    4. The sex act is not in itself illegal, so hiring people to perform it is not illegal.
    But that applies to prostitution, too. It's not illegal for me to have sex with a woman. It's not illegal for me to give money to a woman. How does it make sense to criminalize the two events happening together?

    And none of this really addresses why pornography isn't prostitution, so much as why pornography is a special kind of prostitution that isn't illegal.

    @Malc.

    But from any kind of libertarian/small government perspective, Prop 60 is a disaster. It anoints one named individual as the supreme authority for all porn production oversight, and it would take a 2/3rds majority in BOTH chambers in Sacramento to displace this man… even if he does nothing, or abuses his authority, or generally acts like a jackass.

    As much as I'm against this proposition, as far I can see this charge is completely unfounded. First of all, we need to understand the context of the Supreme Court finding, in the case of Proposition 8, that despite the fact that California propositions supposedly require 2/3 of the legislature to overrule, a proposition can be vetoed by the executive branch by simply refraining from defending the the proposition in court (although, arguably, there are further preconditions, such as no private individual suffering a cognizable harm from non-enforcement of the proposition). Thus, the Supreme Court has created conditions in which it is reasonable for drafters of a proposition to include language allowing them to enforce it.

    And that is all Section 10 does. It does not appoint the writer as an “authority”, it merely gives the writer standing to defend the proposition. I cannot see how any reasonable could conclude from Section 10 that, if he does nothing, the legislature could not “displace” him. Section 10 merely says he has standingl it does not say that the legislature does not.

    @Bob

    Woah, I didn't realize how expansive prostitution statutes can be. Is it statutorily illegal for a girlfriend to put out in exchange for a necklace? Sheesh.

    It's even worse than that; the California statute actually defines letting someone get to second base in exchange for money as "prostitution".

    IForgetMyName says
    NOVEMBER 5, 2016 AT 9:20 AM

    Prop 60: Conceived when the liberal need to regulate the fuck out of any sort of industry for its own good has unprotected sex with the conservative need to regulate the fuck out of any sort of indecency for the children's sake.

    @Nobody

    Isn't prostitution legal in Nevada outside of Las Vegas? Wouldn't that stick a knife in the whole CA/NH argument right out of the gate?

    I believe that the situation is that:
    1. There is no statewide law against prostitution in Nevada
    2. Many local governments, including Las Vegas, have laws against prostitution.

  32. Patrick Maupin says

    @Encinal:

    The "essay" was about the current state of laws — about how things are, not how one might wish them to be. The "rambling" was about connecting all the legal dots. It would be easy for one who operates primarily on feelz to miss this, so perhaps Marc should have added a disclaimer.

    Your description of pornography as a legal special case of prostitution is certainly intuitive to a lot of people, so if the masses believe this and also come to understand that the constitution says that pornography cannot be made illegal, perhaps we'll get some traction towards legalizing prostitution.

  33. says

    Really? Seriously? You were sick of those great unwashed masses expressing bemusement at a seemingly nonsensical distinction, and you thought “Gee, I should write a rambling, 42 page essay on the history of pornography and litigation regarding it. Surely the sort of people I'm dealing will be more than willing to read the whole thing through”?

    Let me take you through the creative process. First, you write a blog post on it. You lobby on it, and talk to even politicians who are either misled, or just lying. You talk to lawyers who say "can you send me your research on this?" Then, you write a Nevada Lawyer article on it. And, you decide "maybe its time to put all this in one place, so that there's a source"

    So, sorry if I didn't further elaborate, give you names, dates, and times of conversations. I didn't expect that I'd have to answer the pedantic dickhead inquiries about "what motivated you?"

  34. IForgetMyName says

    @Rosenfeldt:

    I was latching onto your last sentence implicitly declaring Prop 60 a bipartisan cooperation. Maybe I'm wrong or pedantic, but to me in US politics "bipartisan" usually means "supported by both the Republican and Democratic Party" more than it means "supported by liberal and conservative voters".

    That's absolutely fair. I never really thought about the distinction, but now that you point it out, I really only remember "bispartisan" being used in the context of the actual parties, and usually among actual elected officials, so I probably was using the term a bit too loosely.

    From now on, I'll try to find a clearer, but still succinct way to express what I mean. Perhaps I'll paraphrase TheLizard and call it, "When the right and the left give it to us from both ends."

  35. IForgetMyName says

    1. California law requires sexual arousal.
    This doesn't really address whether pornography is prostitution, so much as whether the particular statutes that California has chosen to adopt has a loophole that pornographers can exploit.

    So the loophole is to convince people to pay for sex that neither party is enjoying?

  36. says

    By hiring the person to have sex with you on camera with a model release, in a private setting, are you effectively 'sheep-dipping' the prostitute as a performer?

    Hmmm,I believe you would have to go to Mexico for that…or Montana.

  37. Encinal says

    So the loophole is to convince people to pay for sex that neither party is enjoying?

    That none of the physical participants are enjoying. If I pay people to engage in sex acts in front of me, I think most people would consider that "prostitution", but it's arguably not covered by the California statute. I think that most people consider a "prostitute" to be someone who engages in sex in exchange for money; if your partner doesn't enjoy it, that doesn't make you any less of a prostitute, it just makes you perhaps a bad prostitute. If I bake someone a pie, and they throw it in someone's face instead of eating it, that makes me no less of a baker. One's occupation mainly depends on what one does, not how other people make use of one's products or services.

  38. Encinal says

    @Randazza

    Let me take you through the creative process. First, you write a blog post on it. You lobby on it, and talk to even politicians who are either misled, or just lying. You talk to lawyers who say "can you send me your research on this?" Then, you write a Nevada Lawyer article on it. And, you decide "maybe its time to put all this in one place, so that there's a source"

    In your article, you said "Those who support the measure (pretty much just the zombie-like jackass who stands to profit from it) claim that the industry can’t leave…"

    So I assumed that this article was directed towards … those who support this measures, especially the "zombie-like jackass", not "lawyers who say 'can you send me your research on this?' ". Unless those categories are the same, you can't blame me for thinking that this was directed towards the people you said is was directed towards. Well, you can, but it makes you look like a thin-skinned idiot.

    I didn't expect that I'd have to answer the pedantic dickhead inquiries about "what motivated you?"

    As well you shouldn't. Because you made it pretty clear what motivated you. And it wasn't lawyers requesting scholarly articles.

  39. andrews says

    I believe that the situation is that:
    1. There is no statewide law against prostitution in Nevada
    2. Many local governments, including Las Vegas, have laws against prostitution.

    From reading the law review article, I am of the view that you are wrong. There is a statewide law in Nevada, but it is what we call a "population act". You may want to go back and re-read, taking especial note of pg 18.

  40. Jerry Leichter says

    And for those wondering (as I was) how the vote came out: Prop 60 failed, 54% No to 46% Yes.

    The 46% Yes is … interesting.
    — Jerry

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