porno vs porneia explained

It's almost certain that on its current precedents, the U.S. Supreme Court would hold that garden-variety pornographic actors are indeed engaged in First-Amendment-protected activity, so long as obscenity is not involved. 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.

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.

Does this make sense? Consider again the significance of the sexual act: legal consequences can follow from it and it can, accordingly, be regulated by the law in a variety of ways. Though two people may very much want to have sex with each other in private, the law can intervene to say that they cannot, just because one of them seeks money and the other gratification, for example.

If, however, both members of the couple are in it for the money, and there is a man with a camera taping them, then the sex is insulated by the Constitution from legal regulation.

Sherry F. Colb, a professor at Rutgers Law School, explains why Spitzer, had he taken the precaution of performing in a pornographic film rather than confining his activities to the privacy of a hotel room, would have been entitled to a Get Out of Jail Free card. The rest here.