N.H. Court: Pornography ≠ Prostitution

New Hampshire's Supreme Court held this week (PDF) that producers of pornography cannot be prosecuted for prostitution, because paying individuals for the right to videotape their sexual acts is constitutionally protected to the extent that the payor's purpose is to videotape the action rather than to get laid.

As Marc Randazza has discussed in some detail at the Legal Satyricon, few courts have previously addressed this issue. The leading case is People v. Freeman, in which California's Supreme Court reached the same conclusion. In an older case, a New York trial court reached the opposite conclusion.

Here, the defendant offered a couple he met money to tape them having sex. To make a long story short, under the provision of the prostitution law he was charged under, it was not necessary to prove that he paid the couple for the purpose of personal sexual gratification; any payment for sexual conduct would do. The court said that this provision was overbroad as applied to this case, because such application would bar the commercial production of constitutionally protected pornography. The court noted that it would have been fine to charge him under a different provision, under which the jury would have to conclude that the payment was made for purposes of sexual gratification, rather than for the purpose of making a film.

This is essentially the rationale of Freeman: (1) Pornography is different because the payment is made for purposes of making a film, not purposes of personal gratification, and (2) If the two were treated alike, a broad category of sexually explicit films could not be produced. The court rejected any distinction between making and selling pornography. If you have a right to produce porn, you must have a right to pay people to perform in it.

Eugene Volokh @ the Volokh Conspiracy is suspicious of this distinction, but I think it makes sense: pornography and prostitution are very different transactions, which is why many porn performers wouldn't engage in prostitution regardless of the law. A prostitution rap makes even less sense in this particular case than in the typical case of professional producers and performers, because the defendant here was soliciting couples who, presumably, were going to have consensual sex with each other regardless.

So hurrah for the First Amendment and pornography production in New Hampshire. On second thought, who makes porn in New Hampshire? Judging from this case, courthouse security guards soliciting random couples they meet at work. Let's hope the court's decision leads to a higher class of New Hampshire-based pornography...