Good News Out of New Hampshire

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And now the good news out of New Hampshire: adults can pay other adults to have sex on camera.

For offering to pay an adult couple to have sex while he filmed them, Robert Theriault was busted by a creative prosecutor on the charge of enabling prostitution. It’s yet another case in which the government tries to get around the First Amendment, which is intended to protect people’s rights to paint, write, sculpt, sing, design, film, and otherwise non-coercively express themselves. The government admitted that a non-obscene sexually explicit film is a legal object. They were just claiming that making it is illegal.

Like most states, New Hampshire law prohibits people from offering money in exchange for activity that is sexually arousing or gratifying (funny how “conservatives” like to interfere with their sacred “market” when it tolerates behavior of which they disapprove). Theriault’s lawyers noted that he wasn’t getting off on the filming, he was simply creating a legal product.

Legally, commerce is far more honorable than sexual satisfaction. Lust: bad; greed: good. That’s the American Way.

So the state Supreme Court ruled it would be illogical if “the sale, distribution, and viewing of a non-obscene movie is constitutionally protected, while production of the same movie is not.” It’s a too-rare victory for logic and civil rights.

This echoes the dilemma that a lot of teens are discovering. From coast to coast, adolescents are having legal sex, digitally photographing themselves while they do—and then getting arrested for sharing “child porn, while the recipients are being threatened for owning “child porn.” Yes, the gap between the age of consent (say, 16 or 17) and the age at which something is no longer “child porn” (fixed nationally at 18) means that an act can be legal, while the record of it can be illegal. Creative prosecutors are exploiting this anomaly in a law that was originally designed to protect kids, and is now being used to destroy them.

The right to make videos of other people having sex may sound trivial, but it is actually quite important. It reinforces the fact that people’s rights to be “let alone” are not contingent on the content of their behavior. Your right to sing doesn’t hinge on whether or not you criticize the president; your right to sculpt doesn’t turn on whether or not you make the Pope look foolish. Similarly, your right to make a movie shouldn’t—and in New Hampshire, doesn’t—depend on whether the content of your film pleases the community or its rulers.

That’s democracy—when fundamental rights are put beyond the approval of either the community or the authorities.

Now, if the rest of the country can just catch up to wild-an’-crazy New Hampshire…

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