Prostitution, Porn and Fair Treatment

Allen Lichtenstein is the general counsel of the ACLU of Nevada.

The current effort to decriminalize prostitution in Berkeley comes at the same moment that state health inspectors are descending on pornographic movie sets in Southern California, seeking to ensure that filmmakers are meeting health law requirements.

On the face of it, this raises an interesting question: Is commercial sex legal, or isn’t it? If the act of paying for sex or accepting money for sex is a crime when it comes to prostitution, why is it not a crime to do the exact same thing for the cameras? What really is the difference between pornography and prostitution, when you get right down to it?

This was the question facing the California Supreme Court in the 1988 case of People vs. Freeman. There the court ruled in favor of Harold Freeman, a producer and director of pornographic films who had been convicted of pandering because he had hired actors and actresses to perform sexual acts in a movie.

The court ruled that because Freeman did not pay the actors for the purpose of “sexual arousal” or “gratification” but only for the purpose of making a movie, his actions did not involve prostitution as defined by California statute. So that’s the distinction: gratification.


Moreover, the court said that because Freeman was making a movie, his actions were protected by the 1st Amendment. The court understood that, despite the claims of some that the 1st Amendment’s free speech clause was designed only for political expression, the U.S. Supreme Court had repeatedly made it clear that all forms of expression -- political, religious, artistic and even erotic -- were constitutionally protected. But sex with a prostitute is not.

Of course, that doesn’t mean there can be no government restrictions on the pornography industry. On the contrary, laws against child pornography are strictly enforced. Producers have to show proof that all actors are over 18. Furthermore, movies that are deemed obscene do not have any constitutional protection and may not be shown in most places.

However, the laws of obscenity are complex and generally cover only the most extreme material rather than mainstream porn. What’s considered obscene is subjective. Even former Supreme Court Justice Potter Stewart could only say, “I know it when I see it.”

Given that neither pornography nor prostitution appears to be going away, it is probably inevitable that communities will start looking at new ways of dealing with them. When it comes to pornography, erotic films must be made safely and with proper regard for the health of sex workers. Just like an auto plant, a pornographic film shoot needs to meet safety and health codes.

As for prostitution, the truth is that criminalization has done little to diminish it. Dealing with it as a police issue has done little to address the problems of disease, coercion and violence that often accompany it. That’s why voters in Berkeley will be asked to vote in November on whether to decriminalize it.

Something similar has been tried in certain areas of Nevada. Rural counties have the option of having legal brothels. Although this system has its critics, the crime, disease and violence issues have been largely eliminated. Statistics of the Nevada State Department of Health show there has never been a documented case of HIV infection spread through a licensed brothel. What’s more, as with the pornography industry, normalization of working conditions goes a long way toward preventing abuse and exploitation.

Critics of both legal pornography and legal prostitution argue that the government should not be giving its stamp of approval to such tawdry and evil activities. But history shows that criminalization does not work. And the idea that legalization gives a government “stamp of approval” is ridiculous.

People don’t watch pornography or visit prostitutes because the government tells them to. Nor do they avoid doing these things because the government tells them not to. Pornography and prostitution will proliferate regardless of whether they are legal or illegal. The time has come to accept that obvious fact and work toward legalization with reasonable regulation.