Why Is Prostitution Illegal But Pornography Allowed?
In What Context Is Having Sex for Money Acceptable but Not In Another?
The delicate line separating the two is that many decisions have determined that pornographic performances are acts that are protected by the First Amendment’s provisions regarding artistic expression.
Hence, the difference is that prostitutes are paid for sex, whereas porn stars are paid, at least in principle, for acting.
Although it is not considered sex for money, performers may have sex as part of their roles. In the process of making a film or taking a picture, sexual content is protected speech under the First Amendment.
It is generally not a sex-for-money agreement because the person paying for the sex is not the same as the one benefitting from the act.
Although no notable examples have gone to court, some supporters of free expression believe that even first-person movies ought to enjoy this protection. Live performances are far less protected than recorded ones, despite recorded performances being somewhat safe.
Live sex shows are not legally protected like sexually explicit content, yet, the Supreme Court or Oregon overturned two states’ statutes about sex shows on grounds of free speech and expression.
The 1980s in California marked a turning point in the fight over prostitution vs. pornography. The prosecution claimed that Harold Freeman, an adult film producer, had engaged in pimping when he recruited five women to perform sex acts for a video titled, “Caught from Behind II.”
The Highest court then decided that “pimping” and “pandering” are not related to pornographic films and that Freeman was not compensating his actors “for sexual arousal or gratification, his own or the actors.”
The court further ruled that enforcing the anti-pandering legislation to these acted-out performances would violate the I Amendment, even if performers engaged themselves in prostitution.
The California Court expressed serious concerns that enforcing prostitution and anti-pandering statutes, in this case, may lead to a slippery slope of regulations that may be applied to less and less explicit content, including romantic scenes in art films.
Since the middle of the 20th century, when Justice Willian Brennan narrowed the definition of obscenity in the US Supreme Court case of Roth V. United States and declared that obscenity was not protected by the I Amendment, most pornography has had a tense legal relationship.
According to the Roth Court, the only way to determine whether a piece of content was obscene was to examine whether it generally appealed to the prurient inclinations of the typical person.
A three-part criterion was established by a later Massachusetts case: a piece of art was considered obscene if it catered to sensual desires, violated societal norms, and had redeeming qualities.
As a result, the present criteria, known as the Millar test, now clearly identifies, that any such work has no real artistic, political, literary, or scientific significance.
Advocates from other states generally refrained from contesting the distinction between pornography and prostitution since, the California v. Freeman case.
The Golden State’s adult film business was able to flourish due to the legal protection provided by that decision. A similar decision in another state might draw adverse attention from the pornographic industry.
