RECOMMENDATION 3

Part: 
Three
Chapter: 
2

Congress should enact legislation making it an unfair business practice and an unfair labor practice for any employer to hire individuals to participate in commercial sexual performances

This Commission does not advocate nor does it condone the use of individuals in commercial sexual practices. The Commission strongly supports enforcement of existing criminal laws against those who violate them by using individuals in commercial sexual performances or in the production of obscene materials. The Commission does, however, recommend imposing fair labor standards on those businesses which engage individuals to perform sexual acts for commercial purposes. This recommendation is made only out of an abiding concern for those persons used in these sexual performances.

The production of obscene material, like many forms of criminal activity, is an enterprise patterned after other legitimate business structures.[115] Producers of obscene material make capital investments, hire employees, and earn sizeable profits. Unlike other businesses, the regulations governing the production of obscenity are largely self-imposed or non-existent. This industry has been called the "last vestige of true laissez-faire capitalism" in the United States.[116] Unlike more conventional businesses and industries, profits from obscene materials go largely untaxed and their employees often suffer varying degrees of mental and physical injury.[117] Seldom, if ever, do employees maintain insurance, pay benefits or provide pension plans to performers or others who work for them.

Congress should enact legislation, as necessary, that would specifically subject the production of obscene materials to the same types of laws and regulations as other businesses. This would not necessarily involve criminal statutes or penalties, but rather it could take the form of civil regulatory statutes. These are not recommended as exclusive remedies, but as a form of regulation that parallels other existing forms of criminal and civil relief. The basis for these statutes is the government's broad powers to regulate commerce.

Legislation also should be enacted that would make it an unfair business practice and an unfair labor practice to hire individuals to participate in certain sexual performances for purposes of producing sexually explicit materials. Included in the prohibited activities should be sexual performances involving children, violence, sado-masochism, or anything which would meet the description of unlawful sexually explicit depictions developed in such federal law.

Congress should prohibit the sale and distribution of any product made as a result of those unfair practices and provide a civil cause of action for any party injured as a result of these practices.[118] The law should also provide protection for individuals who are used as actors or models in obscene material. Such legislation should make any contracts for prohibited performances void, and provide a formula for the determination of damages and payment of attorneys fees. Existing laws and regulations prohibit an employer from imposing dangerous, unhealthy, or unfair conditions of employment on an employee. Employees have a remedy if they are harmed in the course of their employment. None of these requirements have been applied to the pornography industry where these risks are truly pervasive. It is essential that the commercial laws and regulations be applied in a fair and even-handed manner. Business enterprises should be prevented from operating in a manner which jeopardizes the welfare of its employees.

Notes

  1. Chicago Hearing, Vol. II, Duncan McDonald, p. 59.
  2. Id. at 61; The value of society's goods always derives from the values of its people. A democratic society that is unwilling to bar Hustler on public: newsstands or ban billboards from beautiful views cannot justly blame capitalism for these offenses. It is up to the political, judicial, and religious institutions of the society, not other businesses, to eliminate such opportunities for ugly profit. Capitalists perform a vital role in determining what goods and services are initially offered to the public. But the people and their government determine the limits of what can be marketed. Markets provide the ultimate democracy; democracy, though, defines the marketplace. G. Gilder, The Spirit of Enterprise, 91(1984).
  3. See, The discussion of performers in the pornography industry for further information.
  4. This could be in the form of a civil rights type approach.