The Legal Satyricon has a fine post, so I won't belabor the point here:
Mass law defines an “elder” as anyone over the age of 60 (that includes Sylvester Stallone) and a “person with a disability as “a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection.”
There are nightmare scenarios where people, due to mental infirmity, might not be able to give truly informed consent — and in those cases, I too would support measures to punish those who might exploit them. Illinois, for example, reportedly prohibits porn production involving the “severely mentally retarded.” Set aside the fact that we don’t call the mentally disabled “retarded” anymore, and such a law makes perfect sense. I am sure that, more likely than not, someone in such condition would lack the mental capacity to give their consent - and thus we should be jealously protective of their dignity and personal autonomy. C.f. New York v. Ferber, 458 U.S. 747 (1982) (holding that child pornography depicting actual children is not protected speech).
But, Reinstein’s law goes way too far.
Believe it or not, there is a market for “elder porn,” as well as “disability porn,” and those markets are served by consenting, healthy, elderly and disabled models. Naturally, some of this market caters to fetishists, but before you start saying “ewwww,” consider that there also happen to be many healthy members of society who don’t believe that sexual desirability ends at 60, nor at any other age, and it’s not just big in Japan. Just as “elderly,” is not necessarily inconsistent with “sexy,” (Sofia Loren and Sylvester Stallone are both over 60) neither is “physically disabled” necessarily inconsistent with “sexiness.” Just ask this wheelchair-bound porn actress.
One of the most utopian things about the internet is that anyone, and I mean anyone, can (no matter what they look like) find a porn site that features models that look just like them. ...
...Reinstein’s law is not limited to commercial porn. In fact, it doesn’t have to be porn at all - since I’d venture to guess that the elderly women who posed nude for this calendar don’t consider it to be “pornographic” or “perverted.”
The worst part is that Rep. Reinstein’s law equates nude photos of the elderly or disabled with child pornography: You can’t make it for any reason whatsoever, not even for private enjoyment, no exceptions, no nothing.
Presumably - hopefully - this one won't get far. If it does though, I suppose we'll see senior citizens arrested for taking their own boudoir pictures too.