PDF (includes the main entry and the four ‘comments’ below that continue it) (2022):

I

It is my understanding that many people, perhaps most or even all people, in America and the world at large have the notion that pornography is legal in the United States. (Pornography today is above all filmed and/or photographed pornography with real performers.) The opinion may have arisen quite naturally from a host of conspicuous facts, such as that performers in those productions are invited on TV and radio shows, have books written under their names, and engage in various other activities derived from their pornography performer status.

Yet, as far as filmed or photographed pornography is concerned, it is illegal in all states except Nevada, to the best of my understanding of American law. Indeed, this seems to be the necessary corollary of two sets of positive law.

First, prostitution is illegal in all states except Nevada.

Second, the U.S. Supreme Court has ruled that child pornography is not protected by the First Amendment because its content, namely “sexual exploitation of children,” is illegal: New York v. Ferber, 1982.

The Court talks of a “compelling interest” in preventing the sexual exploitation of children. Clearly all that is a crime is so defined –a crime– by law because there is a compelling interest in preventing it. Therefore, filmed pornography cannot be a constitutionally protected right where its content, namely prostitution, is illegal, that is, in all states except Nevada. As a consequence, any statute dealing with obscenity is valid against filmed pornography even without looking for the outcome of a pruriency test adopted by the U.S. Supreme Court when dealing with obscene contents (so-called Miller test). This kind of test, when applicable, is limited to writings, drawings, computer-generated imagery, even the most realistic, and such like.

I believe all states have the statutes. Even if they might be reluctant to enforce them under the notion that they should apply some kind of test and are not quite sure of the result, I deem as sufficiently demonstrated that no test is to apply with filmed pornography: By virtue of Ferber, filmed pornography is a prima facie breach of the law in all states where prostitution is illegal, because it is nothing but filmed prostitution.

Even if there existed no such local or state laws at all, I wonder what prevents federal authorities from prosecuting filmed pornography under the federal law on obscenity, for a cause of action seems obvious anywhere pornography is made of illegal prostitution. In other words, the authorities do not have to prove that filmed pornography is obscene even when they enforce an obscenity statute.

All this may be rather intricate but I believe it is because judges and legislators have missed one fundamental principle, which may be encapsulated in few words:

PACTA TURPIA CANNOT BE SPEECH.

Acknowledgement of the principle would have prevented muddling of the discussion by those who make out pacta turpia (plural of pactum turpe or meretricious contract) as works of imagination and art. While the jurisprudence on obscenity has focused on the words of poets or would-be poets, it consistently ignored that the bulk of obscene material has become filmed prostitution with real people and that the issue therefore is quite remote from the potentially damaging effects of imagination.

II

Is the reasoning applicable to sex tapes, two or more people who would agree to film a sexual intercourse and distribute the video without compensation, for the fun of it? At least there is no pactum, no covenant, no contract in that case? There would be no financial covenant but a covenant still. Be that as it may, the authorities have ample evidence, from the buzz the people in the industry make and to which I already alluded, that they are sex workers, prostitutes, and they can act accordingly, against the performers and above all against their pimps. That would be relevant given the fact with which I began this short essay, namely that most people think staged pornography is legal, although the average person may well be cognizant of the fact that prostitution is not legal while realizing at the same time that both are the same.