The First Amendment Swallowing The Prostitution Law

The First Amendment Swallowing The Prostitution Law

Professor Volokh points to some decisions in which the courts have found that film makers producing adult movies can't be prosecuted for paying actors to have sex (which is a violation of the prostitution staute), on the grounds that "the production of sexually explicit but non-obscene videos is constitutionally protected." Therefore, prostitution laws, because they conflict with the making of adult movies where the actors have sex, can't be applied to film makers. Adult movie makers are exempted from such laws.

I've long wondered why some clever pimp didn't just set up a "studio" in Los Angeles called, "Make Your Own Porn!" where customers pay $200 to someone who sets up a camera while an "actress" performs with the customer. If the police interfere, just scream, "People v. Freeman! The California Supreme Court says that this is constitutionally protected!" And indeed, someone in the comments on Professor Volokh's article makes that same point.

Why doesn't the First Amendment swallow up animal cruelty laws if the cruelty is in the course of making a movie? The same reasoning is in play. Sure, you could simulate animal cruelty for a film--you don't have to actually make an animal suffer to make it appear so on film--in the same way that you can simulate sex.

"But it wouldn't be as realistic!" the film maker and ACLU would respond. And that's true in both cases. And the same would be true for child pornography, too.

The fact is that People v. Freeman and similar cases come to the conclusion that they based on two false ideas: that sexually explicit materials are protected under the First Amendment (a position that seems not to have been noticed for a century and a half after its adoption, when publishing of a variety of indecent, scandalous, and libelous writings were punished as crimes); and that any law that interferes with production of sexually explicit materials but which is not targeted at speech, is therefore suspect.

Here's an analogy that will make clear how absurd this is. The Second Amendment protects a right to keep and bear arms. Where I live in Boise County, there's a resident who is quite upset at the moment because someone at 2:00 AM decided to deliver the coup de grace to an old Acura near her home. If they ever find the idiot who did this, and charge him with disturbing the peace, can he make the argument that the Second Amendment and Idaho Const. Art. I, sec. 11 exempt him from punishment? The disturbing the peace statute isn't aimed specifically at guns--and it is clear that the right to keep and bear arms was not a general guarantee that any possible use of a gun is protected.