40.7 Why doesn't the creation of an adult video run afoul of laws against pimping and prostitution?
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This article is from the Sex Movies FAQ, by director@gti.net (The Director) with numerous contributions by others.
40.7 Why doesn't the creation of an adult video run afoul of laws against pimping and prostitution?
A HUGE thank you to N.P.Trist for doing the legal research on this
one... hopefully it will settle a few debates. He writes:
It can. But not in California :-)
In the mid 1980s, an anti-pornography initiative by the Los Angeles
County District Attorney's Office backfired (to put it mildly) --
the DA's prosecution of adult video producer Harold Freeman led to
a California Supreme Court ruling which explicitly legalized non-
obscene hard-core pornographic videos.
The state's anti-pimping law was changed in 1982 to mandate a
minimum three-year sentence if a defendant were found guilty of
"pandering," the legal term for a type of pimping. Sponsored by
Democratic state senator David A. Robert, the law was designed to
reduce the street prostitution that plagued the senator's Hollywood
district.
Although the law's undisputed intent was to combat streetwalking,
the Los Angeles County DA's Office decided to use it in an
admittedly novel manner. Pandering prosecutions were brought
against several producers of hard-core pornographic videos.
The DA's legal theory was that the exchange of money for sex
equalled prostitution, regardless of whether or not the sex acts
were filmed. The DA's practical theory was that California would
cease to be the world capital of blue movies if the very act of
producing an adult video were criminalized.
The first person charged was Harold Freeman, a veteran producer of
more than 100 adult videos. In September of 1983, the 47- year-old
Freeman had shot the anal-themed "Caught From Behind, Part II" in
Rancho Palos Verdes, a suburb south of Los Angeles. Freeman was
charged with five counts of pandering, one count for each woman
whom he paid to perform in the film. (Curiously, Freeman was not
charged for paying the male performers.) In what would later become
a crucial fact, Freeman was not charged with obscenity.
After a six-day jury trial in Van Nuys Superior Court, Freeman was
found guilty on all counts. The trial judge refused to sentence
Freeman to the mandatory three years on the grounds that such a
sentence would be cruel and unusual punishment. Instead, Freeman
was sentenced to 90 days in jail, fined $10,000 and placed on five
years probation. The conviction was affirmed by the California
Court of Appeals (188 Cal. App. 3d 618, 233 Cal. Rptr. 510).
Freeman's attorneys, Stuart Goldfarb and Dennis A. Fischer, filed
a routine appeal to the California Supreme Court, very few of which
are successful.
Then a miracle happened.
Four justices of the California Supreme Court decided the case was
worthy of review. Briefs were submitted. Oral arguments held. And
the California Supreme Court threw out Freeman's conviction and
explicitly legalized non-obscene, hard-core pornography. People v.
Freeman, 46 Cal. 3d 419, 758 P.2d 1128, 250 Cal. Rptr. 598.
The legality of paying performers to engage in sex acts on film is
founded on two, independent theories, one grounded in state law,
one in federal law.
State Law: The statutory definition of "pandering" contains the
word "prostitution". The statutory definition of "prostitution"
contains the word "lewd". The common law definition of "lewd"
requires, in relevant part, that the sex act be engaged in "for the
purpose of sexual arousal or gratification of the customer or of
the prostitute."
But the performers testified at trial that they were not having sex
for pleasure, they were doing it for the money. Ditto Freeman.
Moving up the chain of definition, Freeman -- and all producers --
are not guilty of pandering, and all performers are not guilty of
prostitution.
Federal Law: The Court made a number of points regarding Freeman's
federal constitutional protections.
1. Non-obscene motion pictures are a form of artistic expression
protected by the First Amendment.
2. Even if Freeman's actions fell within the definition of
"pandering," he could not be prosecuted because his actions
would be legal outside of the context of the adult video
industry. In other words, a murder on film is illegal because
murder is illegal _independent_ of the act of filming and
paying the participants; the sex acts filmed by Freeman were
considered illegal solely because he filmed and paid the
actors. (In oral arguments, the deputy attorney general
admitted that charges could not have been brought had the
performers not been paid for their sex acts.)
To beleaguered porn fans accustomed to being automatically equated
with sex offenders and child molesters, Justice Kaufman's decision
is a rare burst of common sense, cutting right through the
government's bullshit. "Thus the prosecution of defendant under the
pandering statute must be viewed as a somewhat transparent attempt
at an 'end run' around the First Amendment and the obscenity laws,"
he writes. "Rather, the self-evident purpose of the prosecuting
authority in bringing these charges was to prevent profiteering in
pornography without the necessity of proving obscenity."
The Powers That Be went apeshit over this ruling and appealed to
the U.S. Supreme Court for a stay (a temporary suspension of the
California Supreme Court's ruling). Not only did Justice Sandra Day
O'Connor deny the stay, she said in no uncertain terms that the
U.S. Supreme Court would not review the case.
Her orthodox reasoning: The U.S. Supreme Court can only rule on the
federal law components of the decision; the definition of "lewd" is
wholly a state question. Therefore, no action by the Court on the
federal law component could effect the outcome of the case. The
U.S. Supreme Court's opinion would be moot, an advisory opinion.
And, since the day President Washington asked for one, the Court
has refused to render advisory opinions.
Despite the ironclad logic of Justice O'Connor's decision, the
California Attorney General's Office attempted three more times to
obtain U.S. Supreme Court review. A petition was even submitted by
the parents of deceased porn star Shauna Grant. Denied every time.
Today, the Freeman case is still good law in California.
Pornography production in California has been so normalized that
Ron Jeremy picks up his production permits at the same government
office that certifies shoots for Disney.
The California adult video industry is not, however, immune from
legal attack.
First and foremost, obscenity is still a crime, and the U.S.
Supreme Court's "Miller test" for determining obscenity is so vague
that no one knows for sure what's legal and what's not. One
prosecutorial tactic is bankrupting defendants by bringing
groundless obscenity charges, forcing them to incur legal fees.
Secondly, the California legislature could, theoretically, redefine
"lewd", "prostitution" or "pandering" by deleting the pleasure
requirement. This is unlikely, as redefining "lewd" would
necessitate a wholesale redrafting of the Penal Code's sex offense
statutes.
Finally, an overzealous prosecutor with a grudge against
pornography will _always_ devise a stratagem to harass.
To counteract these threats, I recommend that adult video fans
become members of legal groups which, directly or indirectly, help
protect the adult video industry. Such groups include the Free
Speech Coalition, the Cato Institute, People for the American Way
and the ACLU. Membership fees are often nominal, so helping protect
your right to adult videos might cost you $25.
It cost Harold Freeman more than $300,000.
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