1 Regulating Sex Work Adrienne D. Davis VERY ROUGH DRAFT ...

which is not. Sex in the course of creating a movie, video, or photo is considered
“expression,” which cannot be censored based on its content, even if that content is
offensive. 14 Hence, law views those who work in pornography as being paid to create a
protected expression, while those who work in prostitution are paid for sex. 15 Of course,
the pornography/prostitution distinction is unstable and questionable. 16 Many actors in
pornography earn the majority of their living by headlining at exotic dance clubs as “fill
in title.” 17 In this sense, their work in pornography is the platform for a more lucrative
career in sex work. In addition, with regard to the expression/sex distinction, if everyone
14 Roth v. United States, (1957). The exception is obscenity, which is exempt from first amendment
protection because it offends community standards of decency. See Miller [fill in citation and add
parenthetical with 3-prong standard; Under Miller, as long as the work, as a whole, has some “serious
literary, artistic, political, or scientific value,” the first amendment protects its distribution.]. The
distinction was re-visited in the 1980s when California prosecutors argued that an adult film producer was
guilty of pimping because he had hired five women to perform sex acts for a film. The California Supreme
Court ruled that the state’s anti-pandering, or anti-pimping laws were not intended to apply to pornography
and that the acting fees were not paid “for the purpose of sexual arousal or gratification, his own or the
actor.” California v. Freeman, [add citation; also, is more of this a quote than I have captured by my
quotation marks?] (emphasis added). (The sexual gratification of people who watched the movie appeared
to be irrelevant.)
15 Recent legal rulings continue to uphold and even reinforce the pornography/prostitution dichotomy. For
instance, A recent New York ruling reiterated the dichotomy, also noting that “Prostitution is and has
always been intuitively defined as a bilateral exchange between a prostitute and a client.” [add cite; also, is
the next set of quotations from the same case or from the Colb online article about the distinction?] [“Most
of us typically think of prostitution as involving a customer who pays a prostitute for providing sexual
services. We intuit that pornography, by contrast, involves a customer paying an actor for providing sexual
services to another actor./In other words, prostitution is generally understood as the bilateral trading of sex
for money, while pornography involves the customer of an adult film paying money to watch other people
have sex with each other, while receiving no sexual favors himself in return.”; “Most of us typically think
of prostitution as involving a customer who pays a prostitute for providing sexual services. We intuit that
pornography, by contrast, involves a customer paying an actor for providing sexual services to another
actor.] Oregon's Supreme Court overturned laws prohibiting live sex shows in 2005
http://www.deseretnews.com/article/615154044/Oregon-court-overturns-2-sex-show-laws.html
16 For instance, Sherry Colb noted that the New York Penal Law’s definition of a prostitute as one “who
engages or agrees or offers to engage in sexual conduct with another person in return for a fee” would
probably encompass adult film actors. Thus the distinction may not hold up to statutory scrutiny. Sherry F.
Colb, http://articles.cnn.com/2005-08-12/justice/colb.pornography_1_prostitution-ring-sexual-servicespornography/4?_s=PM:LAW.
She also observes that “Though two people may very much want to have
sex with each other in private, the law can intervene to say that they cannot, just because one of them seeks
money and the other gratification, for example. If, however, both members of the couple are in it for the
money, and there is a man with a camera taping them, then the sex is insulated by the Constitution from
legal regulation.” Id.
Of course, in addition to the doctrinal vagueness, to many theorists on both sides of the debate,
pornography is on a continuum with prostitution. See, e.g., ANDREA DWORKIN, Pornography and Male
Supremacy, in LETTERS FROM A WAR ZONE 226, 230 (1993, 1988) (“Politically, culturally, socially,
sexually, and economically, rape and prostitution generated pornography; and pornography depends for its
continued existence on the rape and prostitution of women.”); CATHARINE A. MACKINNON, WOMEN’S
LIVES, MEN’S LAWS 160 (2005) (“Pornography is an arm of prostitution.”). [add cites from other, pro-sex
work side].
17 [add citation].
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