Copyright (c) 2004 University of Virginia School of Law
Virginia Sports & Entertainment Law Journal
NOTE: Challenging First Amendment Protection of Adult Films with the Use of Prostitution Statutes
3 Va. Sports & Ent. L.J. 310
Tonya R. Noldon*
The making of adult films is more analogous to the transactions that make up the institution of prostitution than to mainstream moviemaking. Therefore, the adult film industry should be criminalized in the same way as prostitution. Yet, adult films paradoxically enjoy the same First Amendment protections as mainstream movies.
The stated purposes behind criminalizing prostitution - preventing the spread of communicable diseases, precluding the denigration and sexual exploitation of women, reducing the collateral criminal misconduct that tends to cluster with prostitution (such as drug, alcohol, and physical abuse) - are uncharacteristic of the mainstream movie industry, but prevalent throughout the adult film industry. 2 Not only is the adult film industry not illegal, however, it can barely be regulated at all because it has been labeled "free speech" or "free expression," which is protected by the First Amendment of the United States Constitution. 3 The purposes behind making prostitution illegal, however, are completely unrelated to suppressing free expression. 4
This Note challenges the assumptions that underlie the First Amendment's protection of adult films. It also exposes the strong parallels between the adult film industry and the institution of prostitution, which is criminalized in every state except Nevada and forbidden by federal statute. 5
Part I of this Note presents an overview of the First Amendment's free speech protection of motion pictures that are not obscene. It also addresses the restrictions on the government's ability to regulate movies that are not obscene. ...
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