It comes down to how the U.S. legally frames sexual activity when it’s recorded for entertainment versus when it’s sold as a private service.
1. Pornography is legal because it’s considered “speech”
- First Amendment protection: In the U.S., making a porn film with consenting adults is treated as creating expressive content (like a movie or book).
- Even though sex happens, the purpose is to create a product — a film — that is distributed as entertainment.
- Payment is legally framed as compensation for acting, not for sex itself. In other words, you’re paying for someone’s performance, not their private sexual service.
- Courts have explicitly ruled that recorded sex for distribution falls under free expression, as long as it doesn’t cross into obscenity or involve exploitation.
2. Prostitution is illegal because it’s considered a commercial sex act
- State criminal laws: In most U.S. states, exchanging sex directly for money in a private setting is considered prostitution, and it’s a crime.
- The payment is for the sex itself, not for a performance or creative work.
- The law treats prostitution as a public-morals and public-health issue, historically linked to concerns about exploitation, trafficking, and STDs.
- The act isn’t public expression — it’s a private service — so it doesn’t get First Amendment protection.
3. The strange legal distinction
- If two people have sex on camera for money, it’s legal as “acting in a film.”
- If the same two people have sex off camera for money, it’s illegal as prostitution.
- This creates what some call the “porn loophole”: the same act, in a different legal frame, flips from criminal to protected.
4. Exception
Nevada is the only U.S. state where prostitution is legal in certain licensed brothels. Everywhere else, it’s banned, while porn production is legal nationwide (except in some local jurisdictions with stricter rules).