In a recent discussion at the firm over a local ruling about a Porn Theater (Sorry, "Adult" Cinema), one of the Associates asked why the Pornography laws were so vastly different from those covering prostitution. The Partner referenced a very significant California Case, People v Freeman, and gave the group a web link which, he said, was one of the easiest to understand. I thought I would pass it on and share it with the group.

(p.s. NOT a lawyer)

-- Modified on 2/15/2009 1:34:35 PM

So your associate was right to raise the question.


        1. Obscene sex acts in all pornography violate obscenity laws.

          2. With respect to non-obscene sex acts in pornography, the only accurate statement that can be made is that some non-obscene sex acts in some pornographic productions are “legal.”

        3. Filming illegal conduct and then offering it for sale to the public does not magically transform illegal conduct into legal conduct, nor bring the illegal conduct within the First Amendment. If it did, providers could simply film their encounters, offer the film for sale, and avoid any prosecution for violating state prostitution laws.

       4. With respect to three party cases like Freeman (a third party pays the “actors” to perform sex on camera for reason other than his own sexual gratification, films it, and offers it to the public), the United States Supreme court has not determined whether, or to what extent, the First Amendment shields such conduct from state prostitution laws. The published state decisions I’ve seen are split on this question with 2 state supreme court decisions finding no criminal violation on the facts before it, and one New York trial court decision refusing to dismiss criminal charges against such a producer.

      4. Freeman foundered in the first instance on the state’s failure to present obvious evidence needed to bring the conduct within the state lewd conduct statute.
     
      While the court did hold that the First Amendment would protect the conduct even if proper evidence had been presented, the decision rests on an almost comical view of the facts as involving “actors” who were paid “acting fees” by a film “producer” who was expressing “speech” in the film. I think this court would have bought the “I’m just paying her for her time” defense as well.

      5. Assuming that other state courts would be willing to buy into this “actor” fiction in terms of all pornography is a dangerous assumption, particularly where 2 party porn is involved.
   
    The internet has scene the rise of the porn “auteur” like Ed Powers, a guy who pays the girl to have sex with him and then sells the video. And this kind of sex is just sex period-no story, no acting other than the girl’s ohhing and ohhing etc.  (which may actually be real acting if you’ve ever seen Ed).

        Ed cannot seriously contend that he does pay the girl to arouse him sexually, since you can see his arousal on the screen. If prosecuted, he would have to argue a mixed motive defense –yeah I paid her to arouse me but since I was planning to sell it, the First Amendment protects me. No way our conservative Supreme Court is going to buy that -talk about opening the door to the end run around prostitution laws I described earlier.

         Why haven't we seen more prosecutions?  It really turns on prosecutorial discretion. In a conservative state where porn is not a multi-million dollar tax paying industry like California, I would expect more interest in these kind of prosecutions and a greater likelihood of the prosecution being successful.

Even if there were no issues like obscenity laws there would still be issues related to proving that you are a legitimate business person and intend that the actions you are invoved with are not for the purposes of prostituion but instead to create erotic cinematic literature in accordance with the First Amendment.

What about zoning laws pertaining to running a film business in a (presumably) residential area?

What about labor laws regarding pay, taxes, etc.?

The list could be endless.

Just stay under the radar and screen and research.  That's a lot less complicated.

(still not a lawyer)

If I were to make a case against prostitution it would be on the grounds of protecting married women and families where the husband might get STDs and spend money that should go to the family. There really is no reason why it should affect single, divorced or separated men.

Is that there is no way to guarantee that a single man will stay single or not sleep with a woman who has three kids at home.

Also, I'm not seeing how you draw the line between who has committed a crime and who hasn't. A hooker with HIV sleeps with a single guy and she is not prosecuted but if she sleeps with a married guy she is not? Both guys are just as dead when it's all said and done.  Yes, of course this is an extreme dramatization but these are exactly the sort of issues that will come along.

I'm all in favor of decriminalization with the continuing supposition that grown adults should act like grown adults and be penalized when they don't.



-- Modified on 2/17/2009 4:04:40 PM

that seeing a provider puts the unknowing spouse at much less risk for an STD than if the philandering spouse were to find another outlet for his transgressions.

Along the same line of reasoning a case could be made for legalization on the grounds that it would actually "increase" the safety of the hobby and it's "innocent" victims.

Applying the logic you use:

All motor vehicles should be sold with governors restricting speeds more than 70 mph, so there would be no chance of anyone being guilty of speeding.

Most governmental bodies have restrictions on adult businesses.  The stated purpose is to keep them away from schools, churches, etc.  In some jurisdictions, pawn shops even fall under those rules.

So long as these zoning regulations exist, it will be difficult to drop a porn company anywhere that it's not wanted, unless it's done in a clandestine way.  There are ways to do it, but it takes creativity when dealing with state & local licensing, website names, and even little things like the fire inspector.

Proving the actual elements is harder in porn.

Prostitution requires money for sex, to state it simply.

In a porn movie, who is going to testify that the sex was for money?  Yes, the actress got paid, but for what?  "We all know" is not sufficient legal proof.

If none of the actors or participants say why she got paid, there is no evidence that it was specifically for sex.  In any event, the other people involved probably won't testify

Furthermore, anyone involved in the movie is probably an accomplice, and when a case is heavily reliant on accomplice testimony, it creates problems of proof.

Contrast this to prostitution. The cop says, "She offered me sex for $$$."  Bingo. That's the case.

("She offered me a good time for 200 roses" only creates the issue for the jury of what did she mean. A euphemism doesn't make it legal. If the jury believes it means sex for money, that's all that's needed.)