Posted by Eugene Volokh:
Can Pornographers Be Prosecuted for Paying for Sex?
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228867531
People sometimes ask -- if it's a crime to pay someone to have sex
with your friend, or even to pay two people to have sex so you can
watch, why aren't pornographers equally guilty? Well, occasionally
this gets litigated, and there's a new opinion out on this from the
New Hampshire Supreme Court, [1]State v. Theriault.
[2]New Hampshire Revised Statutes 645:2 provides, in relevant part,
I. A person is guilty of a misdemeanor if the person:
(f) Pays, agrees to pay, or offers to pay another person to engage
in ... sexual penetration as defined in [3]RSA 632-A:1, V, with the
payor or with another person.
Robert Theriault approached a woman and her boyfriend, offering them
$50/hour to let him videotape them having sex (while they used
"temperature blankets," which puzzles me). The government didn't
allege "that the defendant solicited this activity for the purpose of
sexual arousal or gratification as opposed to making a video," because
that wasn't required by the statute. Theriault was convicted.
The New Hampshire Supreme Court held that applying the statute this
way is unconstitutional, because "the production of sexually explicit
but non-obscene videos is constitutionally protected," and upholding
the law in a case such as this one would interfere with producers'
right to create such videos. The court heavily relied on [4]People v.
Freeman, a 1988 California Supreme Court decision that reached the
same result, and disagreed with People v. Kovner, a 1978 New York
trial court decision that reached the opposite result.
It's not clear to me how right the court's logic is. Generally
speaking, the right to create constitutionally protected speech
doesn't include the right to violate non-speech-related laws in the
process -- for instance, I don't have the right to use illegal drugs
in the course of my speech-producing scientific research, or to
trespass on closed government property to shoot a video. There might
be some modest protection offered by [5]United States v. O'Brien
(1968), but that really does offer very slight protection when the law
involved doesn't mention speech, and is applied to speech entirely
without regard to what the speech conveys.
At the same time, I take it that a producer would have the right to
violate antidiscrimination law in choosing actors based on their skin
color (notwithstanding some arguments by my colleague [6]Russell
Robinson in favor of limiting directors' rights at least in some
measure in similar situations). Should a producer have an equal right
to violate prostitution law? If I feel that the one perfect actor for
my movie is a noncitizen who doesn't have a work authorization, may I
hire him nonetheless? Do I get an exemption from [7]child labor laws
(to the extent any statutory exemption for child actors doesn't
apply)?
In any case, an interesting conceptual question, it seems to me.
References
1. http://www.courts.state.nh.us/supreme/opinions/2008/theri131.pdf
2. http://www.gencourt.state.nh.us/RSA/html/LXII/645/645-2.htm
3. http://law.justia.com/newhampshire/codes/nhtoc-lxii/632-a-1.html
4. http://prostitution.procon.org/sourcefiles/PeoplevFreeman.pdf
5.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=391&invol=367
6. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=894981
7.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=321&invol=158
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