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

taped prostitution “acts” and posted them on the internet, would the acts then qualify for
the pornography exemption? 18 Finally, pornography is itself increasingly in question as
work. As many have noted, the internet is eroding the line between the conventional
pornography industry and non-commodified sex. Sex-act videos are increasingly likely
to be available at no cost and the “actors” unpaid, thereby calling into real question the
extent to which it continues to comprise work. 19 Hence, for all of these reasons, although
there is a sophisticated discourse and academic literature on labor dynamics in adult
films, this paper will largely not engage with them. 20
The fifth and final caveat is one about language. I use the term professional sex
because [fill in]. I use commercial sex, sexual commerce, and commodified sex
interchangeably with professional sex. On the demand side, I call consumers of paid
sexual services customers, patrons, and clients interchangeably. I self-consciously use
the “customer” language to confront and unsettle how a full embrace of market logic and
norms can be unsettling. The denomination “customer” suggests the possible legitimacy
of their preferences for different kinds of sexual services, putting purposeful pressure on
those who advocate for legalizing sex markets to contemplate the logical end of
commodifying sex.
I. DISCOURSES OF LABOR & LIBERTARIANISM
The commodification of activities conventionally associated with women—care,
sex, and reproduction—has long generated debate and controversy, especially among
those whose first principles are feminist, i.e., to sex equality and destabilizing the
sex/gender system. 21 While subject to much critique, care activities have long been
heavily commodified and are largely unregulated, or, more precisely, occur in what
18 Also rejecting the compensation dichotomy, Sherry Colb notes that, “Odd as it may seem, what appears
finally to make all of the difference is the mode of gratification for the person who is paying but not
himself seeking money.” Colb, supra note [x]. Colb contends that the true distinction may lie in the
mechanics of sexual excitement and gratification. [check these quotes: “The ultimate demand for
pornography comes from the viewer of pornography, and what excites him is the watching of the adult
film, rather than any physical act performed on him by another person. The "enjoyment" of pornography is
therefore as "speech," rather than as action.” Though real sex occurred in the making of the pornographic
film, this fact is only relevant insofar as it is known (or believed) by the viewer. If, for example, the entire
film were created with highly realistic computer graphics, but the viewer believed that what he saw was
real, then he would enjoy the material just as much.; Because the impact of pornography occurs through the
mediation of an audience witnessing a performance, rather than an audience receiving physical services
from a performer, pornography and its making qualify as First-Amendment protected speech.]
19
[add academic cites if available]; see also Drowning in Porn, New York Mag. 26 (Feb. 7, 2011) [add a
parenthetical].
20
See, e.g., [please find the iconic cites for academic work on pornography. Look at Constance Penley and
she should be a guide to other scholars. I want to do a race string cite to my colleague, Mireille Miller
Young’s work on race and porn]
21
There are, of course, many, contested definitions of feminism. I use Jodi Green’s adaptation of Gayle
Rubin that feminism is dedicated to destabilizing the sex/gender system. [add cites to Jodi Green and
Gayle Rubin; see if other leading feminists also use this or a similar definition]
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