Skip to comments.Prostitutes And Porn: 1st Amend. Protects Porn But Not Prostitutes? Absurd CA Supreme Court
Posted on 11/24/2011 11:07:08 PM PST by stevelackner
The Atlantic's socially liberal Andrew Sullivan asked in March 2008 two very interesting questions: "1. Why is it illegal for me to pay a prostitute for sex, but its NOT illegal for a film director to pay two people to have sex in front of a camera and then make money for his product in the form of a DVD or an online download? 2. As a corollary: Why are a prostitute and her john held in such contempt by the media and the public, but Jenna Jameson and Ron Jeremy are treated as rock stars on both cable and network television? Are they not prostitutes? They were, in actuality, paid for sex. No?" The questions clearly answer themselves. The obvious answer to these questions is that Sullivan had pounced upon a legal contradiction that makes absolutely no sense. As a matter of consistency in the law alone, either both should be illegal or both should be legal. I recently read the 1988 California Supreme Court opinion of People v. Freeman. It is an interesting case in that it dealt with a law against prostitution being used by the government to prosecute a pornographer who paid others to engage in ultimate sex acts such as sodomy and more. The pornographer was convicted for violating State statutes criminalizing prostitution. The Court had to accept that such a pornographer is no different than prostitution, or else explain the difference. In other words, the sole ruling of the Court was dedicated to answering precisely the sort of thoughtful questions posed by Andrew Sullivan and should have any legal theorist scratching their head.
If you expected an answer from this high court that was on par in profundity with the questions posed, you will be sorely disappointed. My first reaction to People v. Freeman is that the First Amendment "obscenity" doctrines created by the judiciary and United States Supreme Court are completely nonsensical (see http://www.stevelackner.com/2011/05/right-constitutional-approach-to-first.html for an explanation of why pornography and sexually explicit material should not be considered protected First Amendment speech in the first place). The linchpin of the entire case in People v. Freeman is faulty, the reasoning laying on shaky ground at the outset. The Court states that the film was not determined to be obscene and for purposes of this review must be deemed to be not obscene. Thus the prosecution of defendant under the pandering statute must be viewed as a somewhat transparent attempt at an end run around the First Amendment and the state obscenity laws. Landmark decisions of this court and the United States Supreme Court compel us to reject such an effort. All this proves is that landmark decisions of the California and United States Supreme Court have been foolish and have themselves made a mockery of the First Amendment. No end running should be needed, the prosecutor should be able to run head on without First Amendment worry. The idea that as a matter of law decided by a few judges this is not an obscene film, despite the fact that the jury in the case felt it was worthy of prosecution under a prostitution statute, is an absurdity. I take very serious issue with the line of reasoning of this Court that states since the acts involved here have not been adjudged obscene, they are within the protection of the First Amendment. They should indeed be considered obscene as judged by those who prosecuted and convicted the pornographer, and they should not therefore be within the protection of the First Amendment. This faulty reasoning is so pervasive in this case that it makes the Court completely unable to accept or even respond to the governments reasonable constitutional arguments.
The Court said that the State of California argued it was prosecuting criminal conduct, not speech. The First Amendment only protects against government "abridging the freedom of speech," and the Supreme Court has rightly long recognized that there is an obvious difference between Constitutionally protected speech and unprotected conduct. In response to this argument, once again the California Supreme Court mindlessly repeats that the actions of the pornographer cannot be considered within the constitutional power of the government to criminalize to begin with because his product is not obscene. In the mind of the Court, it is sufficient to rule simply that the pornographer's activities are not within the power of government because the film is nonobscene, and therefore it is not conduct that the government can regulate. But that line of reasoning is a restatement of the absurd "obscenity" rule as seen in case law, not an actual response to the fact that what is being targeted is clearly conduct. Anyone watching the film would realize right away that conduct is taking place, not speech. Otherwise, no one would watch the film and the pornographer would not profit from it. In the case, a pornographer was paying individuals to engage in acts of intercourse and sodomy. If sodomy is not "conduct," the word "conduct" has lost all meaning. Even if one were to accept that a film depicting sodomy is not obscene, that does not magically transform what is taking place on screen into any sort of "speech." Ultimate sex acts performed in front of a camera is undoubtedly conduct that happens to be performed in front of a camera.
Because of the judiciary's wrongheaded obscenity precedents, the government was forced to try to come up with alternative reasons for the prosecution that it should not have had to. The Court explained the government justifications for the conviction were the prevention of profiteering from prostitution, and second is a public health purpose. Again, repetition of this is not obscene is all the Court needed to declare in response. The Court arrogantly declared that punishment of a motion picture producer for the making of a nonobscene film, however, has little if anything to do with the purpose of combating prostitution. This is utter madness. If combating prostitution is defined as targeting for criminal prosecution those who pay for sex, then it of course has everything to do with combating prostitution. There is clearly profiteering from paying for sex acts to take place. Pray tell, if the client of an actual prostitute were to demand that all services be performed in front of a camera, would it now transform into a nonobscene non-conduct First Amendment right? The fact that it is being filmed would of course no longer transform this from an act of prostitution into an act of First Amendment protected speech.
The Supreme Court of California then further writes that these government interests not only directly involve the suppression of free expression but are, in the context of a pandering prosecution for the making of a nonobscene motion picture, not credible. Does that really in any way even attempt to respond to the public health justification? Not even slightly. The absurdity of legal precedents concerning obscenity is on full display in this case. It makes the California Supreme Court not even have to respond to basic points being made by the side from which it has chosen to ignore. All that needs to be done is continuously parroting the line in response to whatever the government says that is this is not obscene and therefore First Amendment protected speech no matter the argument made.
This Court seems to assume that a commercial pornographer is not a form of prostitution because a third party is paying others to have sex. If that is the case, such an assumption makes little sense. Prostitution itself would then be completely legal so long as a third party pays for the service. Yet I do not think any Court would extend this reasoning to an actual case of prostitution.
The Court then states that this case is incomparable to filming a murder or robbery because considered aside from the payment of the acting fees, itself fully lawful otherwise, the sexual acts depicted in the motion picture here were completely lawful. Are you kidding me? This is astounding. Could this exact line not be transferred to prostitution itself? Aside from the payment of service fees, itself fully lawful otherwise, the sexual acts of a prostitute are completely lawful. As George Carlin joked about prostitution itself, One thing I don't understand is sex is legal and selling things is legal, but selling sex is illegal." It is flabbergasting that the California Supreme Court would attempt to make such an asinine distinction.
Whether paying for porn actors to perform sex acts on film should be a criminal act is an interesting policy question for the legislature and jury to decide upon, but the absolutely feeble attempts to distinguish it from prostitution coming from the California Supreme Court in and of itself demonstrates that it is not a constitutional or judicial one. This conviction should have been upheld. The perverse "obscenity" precedents that are so strongly relied upon for such results need also be abandoned to return some basic Constitutional sanity the First Amendment.
I am merely paraphrasing the Word of the God of Abraham, Issac, and Jacob.
It's not religion, it is faith, the belief in that which is unseen.
Religion is futile.
But it does surprise me to hear such well expressed thoughts coming from someone who uses the image and name of a slave dealer and Klan leader.
No insult intended - I am interested in how you would reconcile Forrest and human freedom.
People behaving badly, as it was in the beginning, is now, and shall always be.
Thank you for your kind comments.
And since imposing criminal sanctions based on religious values in this (and other) regard has been constitutional since the beginning, that's all the reason I need. If a majority of the people support a criminal law based purely on ethical reasons with a religious foundation then that is their right in a democratic republic, baby. Who are you to say your cost/benifit empirical analysis is somehow a more authoritative or moral basis for criminal law than a motivation based on divine revelation from God? If you can bring enough people to your way of thinking so they vote in different laws, go for it. But so far your position has consistently been rejected over a thousand years over a broad spectrum of cultures. And I will continue to support laws consistent with my theistic presuppositions.
Here’s a secular belief; water is wet. That is not an hypothesis, it’s a testable reality, unlike any religion. See, it’s not a mantra.
Why is it legal to promote a film of two men having sex but against the law to criticize them for doing it.
I believe you used this (somewhat) phonetically, but it's Puff, derived from the eponymous boardgame (often played in brothels back in the day), an early form of Backgammon.
(Just in case you ever need to ask for directions...kidding!)
Bare back, huh? And I'll bet the good judges sold tickets to the flogging, too. If someone had a camcorder back in the day, there would have been videos for sale all over the place.
Lawrence v. Texas, 539 U.S. 558 (2003)
Thanks for the correction.
Should your business ever take you to Stuttgart, there's just such a dicing establishment right across a small alley from the city-center Rathaus.
Honi soit qui mal y pense...
I did give it serious thought. The judge is obviously a closet pervert who chose to live out his S&M fantasy under the cloak of a judicial sentence.
No, floggings were normally applied this way otherwise the clothing becomes all smushed up in the wounds in a general mess.
20th century perverted thinking would think of a flogging in a sexual way, 18th century judicial thinking thought of it only as a punishement for various crimes.
Everything in the world is not about sex.
That's not a testible reality it a man made definition given that wet is defined at the presentce of water. A tautology is the best you can do as an example of a secular reality? BWahahahahaha.
That has nothing to do with prostitution. My use of the phrase "in this regard" meant I was dealing with the prostitution issue. Clearly, no law, whatever the motivation in passing it - religious or secular, can violate the bill of rights.
Here’s a secular belief, spring follows winter. Try again
Not free to bind others?! You write in the very same sentence as one who still is suffering from some sort of spiritual or religious hangover yourself. Your strictures and your metaphysical constructs about freedom itself constitute a gigantic leap of irrational faith that cannot be justified or accounted for on your own terms. If on your assumptions cause and effect, chance and/or necessity of brute physical forces are all there is then there is no rational basis for any notion of "freedom" in the first place, much less any foundation for the ethical or noetic prescriptions you just propounded above. When matter in motion is all you've got then your notions of freedom and your proscriptions about what ought or ought not be bound are self-vitiating and absurd,
Based on what you got out of my comment you ought to dig in your back yard for platinum. My assertion that religions are all hypotheses still is unchallenged. If you’d like to address that issue, I’d be happy to participate. If you feel one or more religions are theories, perhaps you’d like to present the testable evidence. If you feel any religion is a fact, we’re done.
Many words have multiple connotations. “ Free” is one of them. I asserted that no one is “ free” to impose their beliefs on another and in that sense the word” free” means permitted or allowed. If you want to argue the converse, i.e. that someone is free to impose their religious beliefs on another, have at; I’ll enjoy the show.
And since you are the one who made the assertion, the burden is on you to prove it. By prove, I mean showing the foundation of your claim that no one is free to impose their beliefs on another (free in the sense of permitted or allowed) and demonstrating how your claim logically derives from your assumed premise.
The foundation of my claim is in the US constitution and the various stare statutes derivative thereof wherein it is plain that people cannot impose their religious beliefs on others. The same or similar laws can be found in most western countries. Should you choose to side with the islamic world on this question, you will find support for the converse of my assertion.
The foundation of my claim is in the US constitution and the various stare statutes derivative thereof wherein it is plain that people cannot impose their religious beliefs on others.
Your original premise was philosophical, not legal. You said, Since any religion and, in fact, all religions are merely hypotheses.... So I asked what the philosophical basis of the your claim is that one is not free to bind others to the rules or beliefs of a religion. Your conclusion is a legal conclusion, but how you get from your premise to the your conclusion is the interesting part.
If you are saying that the original foundation of State laws and of the Constitution was that any religion and, in fact, all religions are merely hypotheses, then I think that you will find little or no historical evidence to support that proposition.
If that's puzzling or confusing for you or if an innate preference for sophistry provokes you to continue to play with words, please find another playmate, it's been awhile since I've found anything of value in your end of the conversation. Thanks
Not that I really expect you to find anything of value in it, I nevertheless offer the following evidence as historical/legal rebuttal to your claim that no one is free to inflict the tenets of any faith upon another because "religions are hypotheses" - from a source that cannot simply be dismissed as foolish, irrational or devoid of common sense. Historically speaking, the foundation of the belief that no one is free to inflict the tenets of any faith upon another is actually religious or trancendent in nature, not secular:
Joseph Story, Commentaries on the Constitution 3:§§ 1865--73 1833
§ 1865. How far any government has a right to interfere in matters touching religion, has been a subject much discussed by writers upon public and political law. The right and the duty of the interference of government, in matters of religion, have been maintained by many distinguished authors, as well those, who were the warmest advocates of free government, as those, who were attached to governments of a more arbitrary character. Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues;--these never can be a matter of indifference in any well ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one's conscience.
§ 1868. Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.
1869. It yet remains a problem to be solved in human affairs, whether any free government can be permanent, where the public worship of God, and the support of religion, constitute no part of the policy or duty of the state in any assignable shape. The future experience of Christendom, and chiefly of the American states, must settle this problem, as yet new in the history of the world, abundant, as it has been, in experiments in the theory of government.
§ 1870. But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires. It has been truly said, that "religion, or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence." Mr. Locke himself, who did not doubt the right of government to interfere in matters of religion, and especially to encourage Christianity, at the same time has expressed his opinion of the right of private judgment, and liberty of conscience, in a manner becoming his character, as a sincere friend of civil and religious liberty. "No man, or society of men," says he, "have any authority to impose their opinions or interpretations on any other, the meanest Christian; since, in matters of religion, every man must know, and believe, and give an account for himself." The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority, without a criminal disobedience of the precepts of natural, as well as of revealed religion.
Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.
© 1987 by The University of Chicago
All rights reserved. Published 2000
Do you posit, or is it your position that secular law in force in this country or any western country specifically allows one to force another to accept the tenets of any faith, religion or superstition (a distinction without a difference)? If that is not your position, we agree and can stop wasting bandwidth on an undergraduate-style philosophical discussion. Deconstruction of words is a clear waste of time.
Before the referee blows the whistle, I hope it is clear from my last post that such is not my position, including of course your 'distinction without a difference'.
AWIAI, since this is a Conservative website*, to imply that the freedoms with which this Nation has been blessed and which are presently being stolen from us are the result of superstition is a demeaning absurdity reminiscent of Obama and his ilk.
Maybe you are not of Obama ilk, but when the foundation is being continually undermined the whole structure will eventually collapse.
* "As a conservative site, Free Republic is pro-God, pro-life, pro-family, pro-Constitution, pro-Bill of Rights, pro-gun, pro-limited government, pro-private property rights, pro-limited taxes, pro-capitalism, pro-national defense, pro-freedom, and-pro America. We oppose all forms of liberalism, socialism, fascism, pacifism, totalitarianism, anarchism, government enforced atheism, abortionism, feminism, homosexualism, racism, wacko environmentalism, judicial activism, etc. We also oppose the United Nations or any other world government body that may attempt to impose its will or rule over our sovereign nation and sovereign people. We believe in defending our borders, our constitution and our national sovereignty."
Please define the difference between religion and superstition
Words are the only tools we have here to try to communicate. My intent has not merely been to engage in word deconstruction, it has been to communicate a message to you.
As far a the word "religion", I am willing to stipulate its meaning in the same sense(s) in which the Founders used it.
As far as the word, "superstition", I submit the following current definition for your consideration:
su·per·sti·tion / ˌsoōpərˈstishən/ n. excessively credulous belief in and reverence for supernatural beings: he dismissed the ghost stories as mere superstition.
∎ a widely held but unjustified belief in supernatural causation leading to certain consequences of an action or event, or a practice based on such a belief: she touched her locket for luck, a superstition she had had since childhood.
The difference of course is whether or not the belief is considered properly justified, or properly basic, but these concepts entail epistemological problems that I'm guessing you will probably not want to delve into in light of your expressed distaste for undergraduate-style philosophical discussion.
Then let me ask why you seem to have unnecessarily confabulated God with religion. It’s a bit like confabulating love with romance novels to my eyes. While it’s true Jim’s site includes a reverence for God, I see no similar mention of religion.
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