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So this is really interesting. I was curious about this awhile back and found this: https://randazza.wordpress.com/2008/03/18/why-is-prostitution-illegal-but-p

by enjo 12y ago

So this is really interesting. I was curious about this awhile back and found this: https://randazza.wordpress.com/2008/03/18/why-is-prostitution-illegal-but-pornography-is-not/ https://randazza.wordpress.com/2008/03/18/why-is-prostitutio... So interestingly California is the only state in the union, at least as of 2008, where porn is strictly speaking legal. But note that the line of reasoning used to make it legal was that the person paying for the sex wasn't actually involved in the sex. So essentially you have a situation in which two adults engage in consensual sex and are paid by a third party for the performance. Now one fun question that arises: what about single person production? The guy who pays a woman to sleep with him while he films it. Such first person sites definitely exist. This leads to the second part which is a first amendment defense. Incidentally, I think this is where your scheme would fall apart. In order to qualify as "speech" I would imagine a court would require some external purpose for the performance. Typically that would be a commercial one (selling porn). Although I would imagine it could be an artistic one (displaying the video in a show of some kind). Or using the video in some form of protest. The point being that to qualify as speech you have to actually be speaking to someone. Simply making porn for your own amusement would fail that test, thus turning this into a more traditional prostitute/john relationship in the eyes of the court. The more interesting thing is that this apparently hasn't been challenged in other states. I suspect because most state governments either lack standing (people aren't making commercial porn in their state.. or at least haven't been caught doing it) or that they think they'd generally fail a first amendment challenge. I should also note I'm not a lawyer.

stcredzero 12y ago
But note that the line of reasoning used to make it legal was that the person paying for the sex wasn't actually involved in the sex. So essentially you have a situation in which two adults engage in consensual sex and are paid by a third party for the performance. What if there was a "registration fee" that went to the website, and it just so happened that this was more than the payment to both "film actors?" In order to qualify as "speech" I would imagine a court would require some external purpose for the performance. What if the website posted the video for members?
- anigbrowl 12y ago
  It's certainly possible to conceive of contractual arrangements that would allow for this, but prosecutors could equally well argue that such arrangements were a mere instrumentality to facilitate otherwise illegal activity, and that argument would rest upon the net direction of economic activity. Suppose Alice is willing to have sex with Bob for $100, and Carol owns a video camera and operates a porn website. So if Carol pays Alice $100 and films and publishes her having sex with Bob, then fair enough, Alice is a porn actress. But in this context, Bob is also someone who would be willing to pay $100 to have sex with Alice, were it not illegal to do so. If Bob offers $100 to Carol, who gives it to Alice, then Charlie is engaged in an illegal pimping relationship with Alice. Carol could pay Bob $100, in which case Bob would also be an actor, but this doesn't make any economic sense for Carol because it's unlikely that every sexual transaction is going to generate $200 of viewing revenue. I mean, why would anyone watch porn if you could just go over to Carol's and make porn, and walk out with more money than you came in with? OK, Carol could pay bob only $10 because of supply and demand, but that still doesn't make sense for Charlie, who's operating at a loss. In reality, the economic motivator is Alice's willingness to have sex for $100 and Bob's willingness to pay for her participation. We could introduce Don, who holds himself out as a booking agent of some sort, and accepts some sort of 'membership fee' from Bob before going on to set up a porn shoot over at Carol's house, but that's just the same situation with an extra helping of conspiracy on the side, plus the economic incentives make even less sense. When you get right down to it the reality is that nobody particularly wants to pay Bob for sex (at least not in the short term) and Bob is in any case more interested in having sex than getting paid. His sexual drive is the motivating factor for any transaction; if no men wanted to have sex, Alice might be able to make $100 by, I dunno, selling hamburgers, but it's unlikely that Bob could consider $100 worth of hamburgers an adequate substitute for having sex with Alice. Of course the other problem with this is that many people who patronize prostitutes wouldn't necessarily want to appear in sex videos on porn-not-prostitution.com, although I suppose you could get around that by having all the videos in silhouette or pixelating the images enough to obscure the participants' identities or something. It's not impossible to come up with some legal scheme whereby Bob sets himself up as a porn producer and is the star of the movies he directs and produces, but I think it would still be almost impossible to generalize this out to some sort of platform. Courts would draw a distinction between Bob actively working a producer of pornography and running a business like Hugh Hefner or whoever, vs 'Carols Adult Video Services' whose clientele consisted entirely of loss-making 'adult video producers' who engaged in no commercial activity whatsoever other participation in sex acts. Going back to hamburgers, you probably wouldn't be able to get out of restaurant licensing/inspection/etc. requirements by claiming that all the people sitting at tables eating hamburgers were actually trainee food-tasters in a school for culinary critics, not a restaurant, nosiree.
downandout 12y ago
You may be right, although....there have to have been porn movies made that weren't distributed for one reason or another. Were all of those legally considered prostitution because they didn't get distributed? I don't know the answer, but I'm guessing they weren't. Imagine you had a house where you setup a few bedrooms with pre-set cameras. People come in, sign the papers saying they want to create a movie, select their actress(es), and leave with a link to view the movie from secure servers. It is available to them, to share or delete if they like. I am also not a lawyer, but I think this would probably be OK, especially in California where there are specific laws allowing porn to be produced.
IgorPartola 12y ago
Sell each film for $1t. Nobody can afford it, so it is effectively private.
mathgeek 12y ago
"Now one fun question that arises: what about single person production? The guy who pays a woman to sleep with him while he films it. Such first person sites definitely exist." Establish a corporation by which you are the sole owner. You perform the deeds, corporation pays the escort.
- sukilot 12y ago
  When programmers try to hack the courts, judges aren't fooled.
  - saraid216 12y ago
    http://xkcd.com/1494/ http://xkcd.com/1494/ obligatory?

by enjo 12y ago

stcredzero 12y ago

But note that the line of reasoning used to make it legal was that the person paying for the sex wasn't actually involved in the sex. So essentially you have a situation in which two adults engage in consensual sex and are paid by a third party for the performance. What if there was a "registration fee" that went to the website, and it just so happened that this was more than the payment to both "film actors?" In order to qualify as "speech" I would imagine a court would require some external purpose for the performance. What if the website posted the video for members?

anigbrowl 12y ago
It's certainly possible to conceive of contractual arrangements that would allow for this, but prosecutors could equally well argue that such arrangements were a mere instrumentality to facilitate otherwise illegal activity, and that argument would rest upon the net direction of economic activity. Suppose Alice is willing to have sex with Bob for $100, and Carol owns a video camera and operates a porn website. So if Carol pays Alice $100 and films and publishes her having sex with Bob, then fair enough, Alice is a porn actress. But in this context, Bob is also someone who would be willing to pay $100 to have sex with Alice, were it not illegal to do so. If Bob offers $100 to Carol, who gives it to Alice, then Charlie is engaged in an illegal pimping relationship with Alice. Carol could pay Bob $100, in which case Bob would also be an actor, but this doesn't make any economic sense for Carol because it's unlikely that every sexual transaction is going to generate $200 of viewing revenue. I mean, why would anyone watch porn if you could just go over to Carol's and make porn, and walk out with more money than you came in with? OK, Carol could pay bob only $10 because of supply and demand, but that still doesn't make sense for Charlie, who's operating at a loss. In reality, the economic motivator is Alice's willingness to have sex for $100 and Bob's willingness to pay for her participation. We could introduce Don, who holds himself out as a booking agent of some sort, and accepts some sort of 'membership fee' from Bob before going on to set up a porn shoot over at Carol's house, but that's just the same situation with an extra helping of conspiracy on the side, plus the economic incentives make even less sense. When you get right down to it the reality is that nobody particularly wants to pay Bob for sex (at least not in the short term) and Bob is in any case more interested in having sex than getting paid. His sexual drive is the motivating factor for any transaction; if no men wanted to have sex, Alice might be able to make $100 by, I dunno, selling hamburgers, but it's unlikely that Bob could consider $100 worth of hamburgers an adequate substitute for having sex with Alice. Of course the other problem with this is that many people who patronize prostitutes wouldn't necessarily want to appear in sex videos on porn-not-prostitution.com, although I suppose you could get around that by having all the videos in silhouette or pixelating the images enough to obscure the participants' identities or something. It's not impossible to come up with some legal scheme whereby Bob sets himself up as a porn producer and is the star of the movies he directs and produces, but I think it would still be almost impossible to generalize this out to some sort of platform. Courts would draw a distinction between Bob actively working a producer of pornography and running a business like Hugh Hefner or whoever, vs 'Carols Adult Video Services' whose clientele consisted entirely of loss-making 'adult video producers' who engaged in no commercial activity whatsoever other participation in sex acts. Going back to hamburgers, you probably wouldn't be able to get out of restaurant licensing/inspection/etc. requirements by claiming that all the people sitting at tables eating hamburgers were actually trainee food-tasters in a school for culinary critics, not a restaurant, nosiree.

downandout 12y ago

You may be right, although....there have to have been porn movies made that weren't distributed for one reason or another. Were all of those legally considered prostitution because they didn't get distributed? I don't know the answer, but I'm guessing they weren't. Imagine you had a house where you setup a few bedrooms with pre-set cameras. People come in, sign the papers saying they want to create a movie, select their actress(es), and leave with a link to view the movie from secure servers. It is available to them, to share or delete if they like. I am also not a lawyer, but I think this would probably be OK, especially in California where there are specific laws allowing porn to be produced.

IgorPartola 12y ago

Sell each film for $1t. Nobody can afford it, so it is effectively private.

mathgeek 12y ago

"Now one fun question that arises: what about single person production? The guy who pays a woman to sleep with him while he films it. Such first person sites definitely exist." Establish a corporation by which you are the sole owner. You perform the deeds, corporation pays the escort.

sukilot 12y ago
When programmers try to hack the courts, judges aren't fooled.
- saraid216 12y ago
  http://xkcd.com/1494/ http://xkcd.com/1494/ obligatory?