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Porn vs. Prostitution: Merit or Money

Pornography is extremely widespread in American society, especially amoung the youth. According to The Journal of Sex Research, almost all male students and slightly over half of all female students have watched pornographic films in the past six months. This is largely a result of the easy access brought about by pornographys presence on the internet. For-profit porn production is functionally very similar to prostitution, this makes the legality of pornography even more interesting. In both occupations people are paid to perform sex acts. The only difference is that pornography occurs in front of a camera. 

While pornography is almost completely legal, prostitution remains illegal and a major focus of law enforcement. In 2018, the Department of Justice shut down the advertising website Backpage, which had became the largest marketplace for sex work in the United States. Sting operations are regulary conducted by state and federal authorities to arrest sex workers and pimps. 

Why is there a difference in legality? Nominally ,pornography can include material which is protected speech under the First Amendment. A series of Supreme Court cases beginning in the 1970s steadily weakened obscenity laws and allowed for more and more explicit material to be legal. Obscenity laws were overturned on the grounds that they could ensnare legitimate art which happened to include sexual content. The line between art and pornography is so blurry, it’s almost nonexistant. This was accurately described in 1964 by Supreme Court Justice, Potter Stewart, who once said that he couldn’t formally define pornography, even though “I know it when I see it.” 

The current test used to determine whether pornography is obscene enough for a ban is the Miller Test, which holds the industry to three standards. A work must completely lack artistic, political, social, or scientific value.  It must simply exist for the purpose of sexual gratification. It must be “patently offensive” to the community where it is distributed. In practice, it is easy enough for porn studios to defend themselves in court under this standard that they are not worth the expense to attack.  

Since prostitution is an action, not a film or an image, it can’t be protected under this reasoning. A law against prostitution has almost no risk of inadvertantly stifling art, leaving room for laws against prostitution to exist.. This is the easy justification and the one implicitly upheld by the legal system. 

However, it is not a complete explanation. Just as there is a strong legal case for allowing pornography, there is a legal case for allowing prostitution. In 2003, the Supreme Court struck down by a 6-3 majority laws which banned sodomy. This was partially on the grounds that regulating consensual sex violated the right to privacy. There is no clear reason why this should not also apply to paid consensual sex. The real reason prostitution is illegal and pornography isn’t, has less to do with the merits of the issue and more with money. When softcore porn was first legalized, this created a budding legal porn industry. When these laws were overturned, the industry was able to advance and further legalize itself. Since prostitution was not legalized in this piecemeal fashion or at all, they lack the resources to agressively defend their rights. 

The law demands the government to remove itself from the private decisions of consenting adults. Even when money is exchanged.. Our courts and our Congress should use their powers to fulfill that demand through judicial review of existing anti-prostiution laws and through new legislation. 

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