(I don't know if this is addressed in the article - the site seems to have fallen over.)
Another one is legal forms required for producers and actors - there are forms that each actor must fill out, these must be verified and kept. Not doing so is a felony.
As long as a 3rd party is involved, and "films" it (still, unmanned camera in the room) and everyone fills out the paperwork, and the 3rd party handles the payment (minimum wage for party A, minimum wage + $X for party B), party A "buys some porn" at the curious cost of minimum wage + $X.
Am I missing something? Did I explain this poorly?
I get a handful of calls per year from guys who think
they're the first geniuses to come up with the great
idea of setting up a "Freeman Brothel" and calling it
a "film studio."
They're all disappointed when I tell them that they're
not getting away with this "brilliant plan" unless they
take so many steps to make it look legitimate that it
will, in fact, become a legitimate porn production
enterprise — in which case, why bother with the ruse in
the first place?Remembering this would put a stop to 90% of legal "discussions" on HN.
It's the other situation where law stops being code. If you do something that is technically illegal but probably oughtn't be then the law can be reinterpreted in your favor.
Assuming you followed the absolute letter of the law with your totally-not-a-brothel then you would be fine (until the law is amended).
"money or its equivalent"
"offers"
"adultery"
"fornication"
etc.
The law is written in terms of broad concepts that a judge can interpret. In most cases there is no such thing as "absolute letter of the law", partly because English makes that impossible, but mostly because legislating such strict specific definitions would be a bad idea. I think the impossibility of bug-free software makes it clear that we wouldn't want laws written like code.
Select parts of laws may have the rigor of a programming language, but the greater portion expresses things for humans, with human ambiguity.
A police trooper pulled me over for ~80 in a 65 (deserted highway at night). He somehow transposed the last two numbers in my license plate, so I obviously assumed I was home free. Until, while I was on the stand, the judge just looked at me for about 10 seconds, said "Were you driving the car?" "[pause] Yes, your honor." "[gavel slam] Guilty."
I'm not sure your example was the best for showing there aren't loopholes based on overly literal interpretations, given that the tax code is notorious for them.
I hope the point was clear though, that the "spirit of the law" is a real thing, and most clever loopholes will not work with a human judge.
There is a gift tax, but it's paid by the donor, and they can give up to the annual exclusion amount a year without hitting it. This year, the limit's $14,000.
Once a gift goes past that for the year, the excess starts counting against the donor's lifetime exclusion and needs to be reported on the donor's taxes. Gift taxes come into play once the lifetime exclusion limit is exceeded, and it's $5.4 million.
One of the things the article points out is that if you're going to "exploit the loophole", it's going to take about as much work as actually running a production company. This seems to be the case here.
(And, presumably the guys in question are also keeping records of the actresses, filling out all the paperwork, etc. No fun going to prison for fucking a 17 year old on camera.)
That's not going to happen easily. And that's partly because it will take away an avenue for filling up prisons. And undercover cops doing the prostitution beat are not going to like it.
But I'm sure if politicians see a tax benefit from legalizing it, they will show some interest.
Prostitution is kept illegal mostly because that's what the majority of voters strongly prefer.
I doubt most people strongly want to outlaw adult, consenting prostitution. But the religious (socially conservative, etc) lobby is loud and participates when the law is challenged. The majority if people don't, so they tend to get what the anti-protitution lobby wants.
"44% of Americans think that prostitution should be legal while 46% think that it should be illegal. Democrats tend to support rather than oppose legalization (50% to 40%) while most Republicans oppose rather than support legalization (54% to 34%). Independents are evenly split, 45% to 45%."
As I expected, men are more pro legalization (59%) than women (30%).
I think you underestimate the left's anti prostitution fervor. Their stated arguments are around exploitation and trafficking.
I think polls usually undervalue how motivated people are to act politically on their stance. In the presidential race, this is related to how "energized" people are to go to the voting booth.
Either way, I think Americans have tended to outlaw borderline issues, but I suspect in the coming 1-2 decades, there will be a significant pushback against over-criminialization of non-violent crimes. There is a book called "Three Felonies a Day" which explains how ridiculous our laws have already become.
In the USA, porn has been largely protected under the 1st Amendment. It is important to note that some pornography is not legal. This is usually called "obscene" and the standards are judged by your local community. There was a famous SCOtUS decision whereby the opinion used the test of "I know it when I see it"[1] to judge the threshold between legal porn and illegal porn, which I find problematic to the point of not being a useful law. You are at the whims of the delicate sensibilities of your neighbors on a jury when you are accused of consuming illegal porn.
Side note: there is a great scene in a movie on the Muhammed Ali SCOTUS case where the justices spend one day a week reviewing "evidence" of another ongoing case involving porn. [2]
Prostitution is usually prohibited because American protestantism (typically in the form of social pressure or local laws) is largely prudish. This is the same social pressure that brought about the alcohol prohibition (with the dubious distinction of being the only Amendment to have been repealed). It is hyperbolized in the movie Footloose in the form of drinking (which leads to unplanned non marital sex, of course!) and dancing (the horror!).
Prostitution, specifically, is usually outlawed because of the effects on public health (both medical health and the mental/social health of men who use prostitutes), and fear of the unknown (violence and other associated crime). Many communities in the US already legalize some forms of sex work (phone sex, video and still camera pornography, bikini waitresses, strip clubs, etc) or perhaps better worded, can not outlaw them. NIMBYs are largely to credit for the threshold of where a community draws a line on local sex work.
Nevada brothels are still legal in many of the less populated counties, but the legal brothels are regulated, the girls must register with the sheriff's office, and they are all tested for medical issues frequently.
The US has had a long history with using the law to outlaw "socially undesirable" behaviors (put another way, the prevailing social cohort is able to control other unapproved cohorts with the law, creating something of a tyrant of the majority). I firmly believe that marijuana is much less dangerous than many other, more acceptable drugs which have been legalized (like alcohol and tobacco). Even legal gambling is a much larger risk to public health than marijuana. But marijuana (which I don't use) prohibition has, in the past, been a convenient tool to outlaw to control non-white populations in the US and to prevent a drop in the insane work ethic protestants require of their community, similar to how the alcohol prohibition was sold to other WASPs by controlling those "unruly" Southern Europeans during a generation when the US was becoming increasingly fearful of its changing demographics.
Like many other prohibitions, prostitution is hard to police and the side effects of the prohibition are probably worse than if the action were legalized. Modern prostitution is a fund-raising tool for drug cartels, people smugglers, and has contributed to a rise in modern slavery.
I never really thought about that distinction before. The author's answer makes sense. What it really shows is that prostitution should be legal.