Author: Stephen Sachs (Page 11 of 25)

Pornography and Prostitution, Part III: One final issue, developed late on a Thursday evening with Josh Chafetz (no, not in that way) — all of the above discussion (Part I, Part II) assumes that the money or object changing hands is uncontroversially a “thing of value.” But what if this couldn’t easily be proven? Suppose that A is the owner of an asset–shares in a private corporation, very complex financial instruments, the copyright in an as-yet-unpublished work of unspecified sentimental value (say, “The ‘Law Merchant’ and the Fair Court of St. Ives, 1270-1324“)–whose worth is not easily assessed. Whether a sex act conditioned on the transfer of this asset qualifies as prostitution might depend on how the asset is valued in court.

For instance, suppose that persons A and B sign a contract according to which A transfers the copyright to B, B transfers $500 to A, and A and B have sex. According to the Missouri definition, A has committed prostitution only if A has engaged in sexual conduct with B “in return for something of value” to be received by A or a third party C. If the copyright is worth more than $500, then neither A nor any third party C has received something of value; in fact, A lost money on the deal. Furthermore, A has “patronize[d] prostitution” only if A gives something of value to B, in return for which B engages in sexual conduct with A or a third party C. If the copyright is worth less than $500, then A has given nothing of value to B; in fact, B has lost money on the deal.

So convicting A of either prostitution or patronizing prostitution will require establishing the value of the copyright beyond reasonable doubt–or at least whether or not it exceeds $500. The same logic, of course, holds true for B: either A was the prostitute and B the patron, or B was the prostitute and A the patron. It’s obvious from the nature of the transaction that A and B have both committed a crime; it’s just impossible to know which committed which. And the American legal system (as well as the drafting of the statute) requires that each person be convicted of one or the other offense. This is one of those unusual situations where the affirmative defense to a given crime is having committed an entirely different crime. (“He couldn’t possibly have been the gunman, your Honor, because he was too busy transporting minors across state lines.”) If A and B were both involved in a murder, but only one person fired the gun, it would be necessary to prove that A was guilty of murder or that A was an accessory to murder–we couldn’t simply convict him because he had done at least something bad. And even though the evidence introduced by the defense lawyer might be used against A in another trial, there might be enough uncertainty to produce a reasonable doubt in each case — in which case A would have to be acquitted on both charges. There’s also no possibility of catching A on a general conspiracy charge, at least in the case of prostitution; Missouri’s catchall “promoting prostitution” offense–Chapter 567.010(1)–only applies to someone “acting other than as a prostitute or a patron of a prostitute,” and A falls into at least one of these categories by definition.

Another concern for valuation — the asset is a “thing of value” for whom? Is the value of the copyright subjectively determined by the giver or the receiver, or is it objectively determined by a neutral observer? Could A and B both be patrons, and neither prostitutes, if their valuations of the copyright disagree? And what if A transfers to B something that has significant market value, but that B doesn’t necessarily want, such as an unmanageably large amount of scrap metal?

I don’t pretend to have the answers to these questions, but I think they hold a great deal of promise. To escape liability, prostitutes might choose to condition their sexual favors on highly complex financial transactions. (Imagine a jury in a prostitution case having to work through the Black-Scholes equation.) So long as the payment has been appropriately cloaked, both patron and prostitute will fall through the cracks of the legal system — an appropriate reward, perhaps, for their entrepreneurial innovation.

Pornography and Prostitution, Part II: What site logs will tell you: SteveSachs is your Internet source for “pornography and prostitution in Missouri“!

Unsurprisingly, that post has generated a fair bit of reader email. First, PW asks, “Is the sex act without the intent to achieve gratification still the sex act?” According to Missouri Revised Statutes chapter 567.010(4), not necessarily. Most acts, when committed in return for a thing of value, are automatically considered “prostitution” regardless of intent. But others must be “done for the purpose of arousing or gratifying sexual desire of either party.” (Which are which? I won’t go into detail, because despite what you might think, this is a family website.)

PW also distinguishes pornography from the manufacture of murders-on-film on the grounds that (1) the participants in a pornographic video are willing, unlike the unwilling victim of a murder, and (2) the act of sex is itself legal, while murder is not. I don’t think either of these distinctions are material as far as legality’s concerned. On the first, the participants in an act of prostitution might also be willing, but that doesn’t mean it’s legal (although that might, depending on one’s libertarian convictions, mean it should be). On the second, even if the sex per se is legal, the situation changes once money gets involved. Donating a kidney is itself legal, but doing so on the understanding that I will be paid by the recipient is not.

KW makes the following business proposal:

on your site you question why some enterprising young DA hasn’t gone after prostitution. an equally pertinent question would be why hasn’t some enterprising young pimp started filming his prostitutes’ transactions (with the camera appropriately concealing the identities of certain parties) and paying a buck to each party involved. the money that he receives from the gentleman is for the tape at the end.

(i’ll make millions.)

SP, however, counters with the following real-life example (well, from TV, but close enough):

All I know about prostitution vs. pornography is from LA Law, so bear with me but…

The production of pornography does not need to be protected by the First Amendment in that it is not illegal to have sex. It is not illegal to film someone having sex (with their permission). Under the First Amendment, it is not illegal to sell that film or to earn a profit off of it. Therefore, the “actor” is not being paid to have sex but is in fact being paid for the film rights.

It’s a fine line, but the main distinction is distribution. As long as you are making money off of the distribution of said film, then you are not paying them to have sex. But if the tape is never distributed (and this is where the LA Law episode comes in) and you are paying two people to have sex for your own viewing pleasure, that IS prostitution, as you are clearly NOT paying them for the film rights.

At least, that’s what the porn industry argues.

…

p.s. The “author” of film, even if copyright is established by contract, is the director. That really pisses off writers, but hey, that’s the way it goes. So you say usually say Spielberg’s “Indiana Jones,” even though Lucas wrote it and Paramount still holds the copyright.

I can understand how this argument might be used in practice, by prosecutors who don’t want to make trouble. But to be honest, I can’t believe that it would stand up in court if the government really wanted to test it. The actors in a pornographic movie clearly participate pursuant to an agreement that they will receive a “thing of value” in exchange for their actions–namely, a share of the valuable film rights. (They might not know exactly how valuable they might be–but would prostitution no longer be illegal if its practitioners were paid in stock options?)

What’s important is that the participants know that they will profit from their sexual activity–and they know that, should they suddenly decide not to have sex once the cameras were rolling, they wouldn’t get paid. Having sex is believed to be a necessary condition for payment, and that’s all the law demands. (Suppose that A lies to B, and engages in sexual conduct without any intention of actually paying. Under Missouri law, even if no money changes hands, A is still guilty of patronizing prostitution–what matters is that A led B to act in the expectation of reward.)

To provide a better example, suppose that I’m a government contractor, and I inform a procurement official that I would like to film the ceremony at which she awards a contract to my company. In fact, I would be willing to give her a share of the rights to the film’s distribution, which will be valuable, because all my wealthy friends want to purchase hundreds of copies. It’s not illegal for an official to award a contract to my company. It’s not illegal to film it (with her permission). Under the First Amendment, it’s not illegal to sell that film or to earn a profit on it. Therefore, the official is not being illegally bribed into sending me a plum contract–she’s just being paid for the film rights.

If the film had already been made (and the contract awarded) before any suggestion were made of money changing hands, the transaction would be perfectly legal, and there would be no suspicion of bribery. But because the promise of valuable film rights led to the expectation of reward, I couldn’t get out of jail by explaining that it was all in the name of cinema. I don’t see why money-for-contracts should be treated any differently from money-for-sex; and I don’t know why more prosecutors haven’t tried their hand at this approach.

UPDATE: See further post above.

Thesis Revision Quote of the Day: From the great legal historian Frederic William Maitland:

Besides, it is common knowledge that those who perjure themselves are often struck dead, or reduced to the stature of dwarfs, or find that they cannot remove their hands from the relics they have profaned.

Maitland, Outlines of English Legal History, 560-1600, Social England (H.D. Traill ed., London, Cassel & Co. 1893), reprinted in 2 Collected Papers of Frederic William Maitland 417, 447 (H. A. L. Fisher ed., 1911).

Scandinavian Museum Watch: Another artwork, this time in Norway, has outraged the local Israeli ambassador (link via Volokh). Entitled “Anti-Semite in the Name of God,” the work depicts the words “USA” and “ISRAEL” crossed at the “S,” which has been changed into a swastika. It also depicts the Norwegian flag and a lot of non-descript red geometric shapes. In my expert artistic opinion, it’s a piece of crap.

This, of course, follows on the controversy surrounding “Snow White and the Madness of Truth,” a work displayed in the Stockholm Historical Museum in January. It included a red blood-like pool in which floated a small boat, bearing the smiling portrait of female suicide bomber Hanadi Jaradat. Jaradat had murdered 21 people in a Haifa restaurant, and the installation was damaged by Ambassador Zev Mazel when he visited the museum in January.

Both of these incidents made me remember my own trip to Finland and Sweden last April, when I visited the Stockholm Historical Museum. At the time, the museum’s “Prehistory” exhibit — possibly the same room that later featured Hanadi Jaradat — included an installation on “The Culture of War,” which consisted of the following items in a glass case:

• a Viking helmet
  

• a rusted sword
  

• many WWI-era shell casings
  

• the famous picture of a girl fleeing from napalm in Vietnam
  

• statistics on the U.S. FY2002 and FY2003 military budgets

The accompanying text, which a friend of mine paraphrased from the Swedish, surveyed the global movement away from the “culture of war” and concluded: “Even after the fall of the Soviet Union, the culture of war continues in the United States.”

Let’s leave aside for the moment the substance of the artists’ politics (though one might well ask whether, if the U.S. rejected the “culture of war” as strenuously as Sweden, it would still offer security guarantees in Europe and East Asia). As with the often-fatuous collections of poems against the war, it’s useless to contest “arguments” in poetry that would be mere polemic if set in prose.

What I find more notable are the demands made by such artists on our political attention, their claims to be prophets by virtue of skill with paint. (Those who think that artistic talent is always coupled with progressive politics should watch the Klan-idolizing Birth of a Nation, or the celebrated Triumph of the Will.) Some art is powerful enough to speak to our political sensibilities, and to persuade even those who unsympathetic to the cause; some art is not. The fear and pain of the girl in Vietnam can make even the most battle-hardened heart recoil at war — but the Stockholm installation as a whole fails this test. Its message was only accessible if one already believed that militaries were, on the whole, a bad thing, just as the Norwegian painting cannot move those who find the U.S.-Nazi Germany comparison inapposite. Pieces like these are more like poorly-written leaflets than works of art; they possess little more artistic value than the chalk-graffiti scrawl of “ONE SOLUTION: REVOLUTION” on the bridge near my house. (Or, for that matter, the many chalk outlines of dead bodies I saw on the Stockholm streets labeled “USA WAS HERE.”) In other words, Guernica they ain’t.

Those who make their art subservient to a cartoonish politics will produce cartoonish art. And poets and artists, whatever their talents, are no more likely to possess great political wisdom than the rest of us. As W.B. Yeats once wrote,

I THINK it better that in times like these

A poet keep his mouth shut, for in truth

We have no gift to set a statesman right;

He has had enough of meddling who can please

A young girl in the indolence of her youth,

Or an old man upon a winter’s night.

More Pickups: John Kerry’s 1970 Harvard Crimson interview (see below) is picking up steam. After its appearance on the Drudge Report, it’s now been referenced in two columns by Howard Kurtz in the Washington Post, and the Bush campaign may use it in ads. According to Kurtz’s latest,

President Bush’s reelection campaign has decided to focus its coming advertising barrage not only on John F. Kerry’s record as a senator but also on his days as an antiwar activist, a House candidate and Massachusetts’s lieutenant governor.

…

A 1970 Harvard Crimson interview in which Kerry said that U.S. troops should be deployed “only at the directive of the United Nations” will be fair game, the officials said. If they run ads about that period, they will probably focus on Kerry’s high-profile opposition to the Vietnam War and comments about U.S. atrocities that could neutralize his record as a decorated veteran.

I doubt that the interview will have much traction in the general election; keeping Vietnam on the front burner will only give more attention to Kerry’s record as a decorated war veteran. But regardless, big kudos to The Crimson for digging this up!

Fromage! The era of freedom fries is hopefully long over by now. But would John Kerry really want a story on support from expatriate Democrats to bear the headline, “Kerry, the Big Cheese in France“?

On the Shoulders of Giants: I’ve received a good deal of help on the question of standing to challenge San Francisco’s gay marriages (discussed below). Former roommate and blogger extraordinaire Steve Wu e-mails:

Coincidentally a couple of us were talking about this today. Our conclusion is that (1) to the extent that they have standing, they probably have standing under state law, not federal law; (2) if state standing is more capacious than federal law, then it is unlikely that they will be able to remove or appeal to federal court due to standing problems.

Steve subsequently pointed out that state law is more flexible in this case, as Jack Ayer writes:

Although California does have a standing requirement/real party in interest, there is an exception for questions of “public right” and “public duties” that allow a plaintiff seeking a writ of mandamus to sue as long as the plaintiff shows s/he “is interested as a citizen in having the laws executed and the duty in question enforced.” Green v. Obledo, 29 Cal.3d 126, 144 (1981). Taxpayers can sue to prevent a public official from waste or illegal expenditure of public funds. The plaintiff must be a resident of the state, city, or county involved, and assessed for and liable to pay taxes (or have paid tax) to the public entity within the past year. California Code of Civil Procedure sec. 526a See generally Brown & Weil, California Practice Guide: Civil Procedure Before Trial para. 2:66-2:70 (The Rutter Group 2003).

And James Grimmelmann (who also taught my CS 121 section!) emails to note that the briefs in the case rely on Section 526a in their discussion of standing.

The question remains, however, how these issues would be resolved in a state with stronger standing requirements than California. As Steve writes, similar issues could arise in the context of the proposed Federal Marriage Amendment, which reads as follows:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

There’s been a good deal of controversy whether this amendment would block civil unions, but it’s not even clear what would happen with full-fledged gay marriages. If the legislature of a state like Massachusetts chose to endorse gay marriages, and if the Cambridge city clerks begain issuing licenses for them, who could sue to make them stop? The licenses might be held to be void when challenged (in cases of custody, inheritance, etc.), and businesses might be able to avoid paying marital benefits to gay couples, but the practice itself could presumably continue. And I doubt that any amendment would include a “qui tam” clause that allows individuals to sue on the government’s behalf, a practice that is well-known for letting whistleblowers sue those defrauding the federal government (though not, unfortunately, in cases of tax fraud).

(In response to this suggestion, Steve notes that with an enforcement clause in the amendment–e.g., “Congress shall have power to enforce this article by appropriate legislation”–Congress could create its own qui tam provision. Such a provision would then bypass any Article III requirements of standing under Vermont Agency of Natural Resources v. U.S. ex rel. Stevens.)

It’s interesting to consider what would happen, though, if the FMA passed without such enforcing legislation and a state legislature did choose to disobey its terms. As in San Francisco, there would be a large number of couples who had been “married” and who might be socially recognized in their communities as having this status. They couldn’t use it as an argument in court, to claim visitation rights in hospitals or custody of adoptive children, but there would be no legal process for voiding the “marriage” entirely. In some sense, that’s why Newsom’s move is such a brilliant strategy by those favoring gay marriages: it moves the debate away from abstract principles and refocuses it on individual couples–those whose commitments to each other must be broken in order for the law to be upheld.

Quote of the Day: Michael Totten explores the views of ex-Laborite and MP George Galloway:

I can’t help but think some people admire totalitarian regimes not because they want to live in one, but because they want to be in charge of one.

(Link thanks to Instapundit.)

Demography is Destiny? ALDaily, Tyler Cowen, and Dan Drezner have all picked up a fascinating essay by Nicholas Eberstadt on “Power and Population in Asia.” Quick summary: the “greying of Europe” will only be copied in Asia; China and Japan will see their populations age dramatically in the early- to mid-21st century. The changes will be especially hard on China, which is poorer, lacks an effective pension program, and has an economy far more reliant on physical labor. Not only that, but China’s skewed sex ratio (caused in part by sex-selective abortion and male-favoring exceptions to the one-child policy) could mean that in some regions there will be 30 percent more men than women, which (barring a substantial increase in fertility) will only accelerate the demographic decline.

Of course, all of these projections are based on current trends. But Eberstadt’s projections are unlikely to be far off the mark; because of low death rates, most of the people who will be alive in East and South Asia in 2025 have already been born. And in fact, the only major country expected to retain a larger, younger, and potentially more productive workforce may turn out to be the United States of America. Well worth a read.

Wedding Suit: A friend recently sent me an article on San Francisco’s gay marriage policy, which has been marrying people like crazy while the lawsuit wends its way through the courts. Regardless of one’s views on gay marriage, it’s impossible not to be impressed by the stories of couples who have stayed committed to each other for 20, 30, 40 years — commitments that many straight couples have been unable to match, even with the protections of marriage and the social recognition of their union.

What puzzles me, though, is the lawsuit seeking an injunction against the city. Who would have standing to contest the city’s decision? Even if it were an open-and-shut case that California law doesn’t recognize gay marriage–the voters having recently adopted a proposition to that effect–wouldn’t that just mean that the marriages themselves would be void if they were ever challenged? Who could reasonably claim to have been injured by the city’s refusal to enforce the law?

According to the complaint (PDF), if the marriages are not stopped, “Plaintiffs will lose their fundamental right to have their vote in favor of Proposition 22 afforded proper treatment.” But do individuals really have a legal claim to the government’s treating their votes properly? If California adopted a ballot proposition concerning littering in state parks, and a park ranger deliberately ignored evidence of someone littering, could any California resident sue on the grounds that his or her vote was not being “afforded proper treatment”? (Alternatively, assume the ranger was the one doing the littering, and was thereby personally violating the law; could there be an individual cause of action to make him or her stop?)

The complaint also notes that public funds will be expended without authority, which might be a better claim. But aren’t the couples themselves paying all expenses?

The assessor-recorder, Mabel S. Teng, said her office, responsible for issuing the $83 licenses, performed 825 weddings on Monday, bringing the number of same-sex marriages to about 2,425 since the city opened the gates to gay couples on Thursday.

Even if no additional public funds are being used, it might be possible to argue that the public is injured by demands on public officials’ time, as they conduct activities outside the scope of their office. (Certainly a straight couple would have a hard time getting in the door for a marriage license this weekend.) But I don’t know enough about civil procedure to tell whether this really rises to a justiciable claim — or, if it isn’t one, how citizens could ever contest the “harmless” illegal actions of their public officials.

(On a more cynical note, by my calculations, the 2,425 marriages have brought in $201,275 in added revenue in just four days. And I doubt the city would offer a refund if the marriages are declared illegal. So one can only imagine the closed-room discussions in Mayor Newsom’s office last week: “Well, folks, I know we’re facing a big budget shortfall, but Mabel here had an idea…”)