I have heard (and read) this question asked by lots of really intelligent people. See, e.g., Rogier van Bakel. Of course, Rogier’s take on it is more rooted in the “morality” vs. liberty battle. Rogier is a five star general in the battle for common sense and liberty.

Andrew Sullivan asks it a little differently — more as a purely legal legal question.

1. Why is it illegal for me to pay a prostitute for sex, but it’s NOT illegal for a film director to pay two people to have sex in front of a camera and then make money for his product in the form of a DVD or an online download? 2. As a corollary: Why are a prostitute and her john held in such contempt by the media and the public, but Jenna Jameson and Ron Jeremy are treated as rock stars on both cable and network television? Are they not prostitutes? They were, in actuality, paid for sex. No?

The reason that adult film performers are not “prostitutes,” and why paying people to perform in erotica is legal is discussed in the seminal adult-entertainment case, People v. Freeman, 46 Cal. 3d 419 (1988).

In that case, Harold Freeman hired and paid actors to perform in a non-obscene erotic film, called “Caught from Behind, Part II.” “As part of their roles, the performers engaged in various sexually explicit acts, including sexual intercourse, oral copulation and sodomy.” The State of California charged him and convicted him of five counts of “pandering,” defined as “procurement of persons for the purpose of prostitution” — under the California Penal Code.

The Supreme Court of California held:

[T]he 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 state obscenity laws. Landmark decisions of this court and the United States Supreme Court compel us to reject such an effort. People v. Freeman

Okay… but how did they come to that conclusion?

The California Supreme Court noted that in order for there to be “pandering,” there must be “prostitution.” Prostitution is defined as “‘any lewd act between persons for money or other consideration.” The state argued that since the performers engaged in sexual acts before the movie cameras “for the money they received,” they were engaged in prostitution, and thus Mr. Freeman was engaged in “procuring” them for prostitution.

If you don’t think too much, this makes a lot of sense. But, we were put on this earth to think. The Court rejected the State’s argument on two grounds — the statute simply didn’t fit, and even if it did, it would run afoul of the First Amendment.

Statutory Construction

This is the dull part. However, it will become apparent why this is just as important as the First Amendment issue.

The Court noted that for an act to constitute prostitution, “the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.” Id (citing People v. Hill (1980) 103 Cal.App.3d 525, at 534-535). Since the payment of the acting fees was the only payment, there was no evidence that any payment was made for the purpose of sexual gratification.

Defendant, the payor, thus did not engage in either the requisite conduct nor did he have the requisite mens rea or purpose to establish procurement for purposes of prostitution. People v. Freeman

The First Amendment Issue

Even if defendant’s conduct could somehow be found to come within the definition of “prostitution” literally, the application of the pandering statute to the hiring of actors to perform in the production of a nonobscene motion picture would impinge unconstitutionally upon First Amendment values. People v. Freeman

The court recognized that one cannot hire someone to commit murder, rape, or robbery just for the purpose of photographing the crime and then claim that the First Amendment protects one’s right to do so . These are crimes “independent of and totally apart from any payment for the right to photograph the conduct.”

In other words, robbery is illegal. Having sex is not. Paying someone to commit a crime like robbery still leaves the underlying crime of robbery — whether there is a payment or not. Paying someone to have sex in a film requires us to determine whether the payment makes the otherwise-legal intercourse “prostitution” or not.

The court started with the correct presumption — that the film was expressive material, and thus presumptively First Amendment protected. The Court had previously held that it was “too evident to require elaboration” that applying criminal penalties to sexual activity in a live theatrical performance “would have an inhibiting effect upon the exercise of First Amendment rights.” (Barrows v. Municipal Court, supra, 1 Cal.3d 821, 827.), and that was the case in Freeman as well.

To subject the producer and director of a nonobscene motion picture depicting sexual conduct to prosecution and punishment for pandering, including a special provision for ineligibility for probation attendant on such a conviction (see fn. 2, ante), would rather obviously place a substantial burden on the exercise of protected First Amendment rights. To include the hiring and paying of actors for acting in such a film within the definition of pandering would therefore unconstitutionally infringe on First Amendment liberties. [1c] Consistent with Barrows, Burstyn, Burton and Flack and consistent with the principles of statutory construction outlined above we are thus compelled to conclude that the Legislature did not intend the antipandering law to apply to the payment of acting fees for performance in a nonobscene motion picture. We observe that if section 266i were applied in the manner urged by the People, it would include within the literal sweep of the statutory language films of unquestioned artistic and social merit, as well as films made for medical or educational purposes. We reaffirm our observation in Barrows, “any more restrictive rule could annihilate in a stroke much of the modern theater and cinema.” People v. Freeman

Back to Statutory Construction

Remember the boring part above? Here is why it is important: The State sought a stay of enforcement of the California Supreme Court’s decision from the U.S. Supreme Court. Justice O’Connor, sitting as a circuit justice declined to enter a stay and opined that there was not much likelihood that the full court would grant certiorari. See California v. Freeman, 488 U.S. 1311 (1989).

O’Connor noted that the state might have had a right to appeal had the California Supreme Court decided the case solely on First Amendment grounds. However, the decision was based on two independent rationales – statutory and First Amendment. Even if the Supreme Court were to review the California Supreme Court’s decision and find that the state court had misapplied the First Amendment, on remand the California Supreme Court would still have reversed the conviction on statutory grounds. Accordingly, the case was over one way or the other.

Interesting… but how might a similar prosecution come out in a different state?

You don’t need to be a Constitutional Law expert to realize that this decision is not binding upon any other state. The California Supreme Court decision only binds the State of California. So what if another state wanted to bring the same exact prosecution? Lets call that imaginary state “Kansas.” What if the Kansas legislature decided to draft its prostitution statute so that it did encompass acting in an adult film?

If that were the case, and Kansas prosecuted someone under its new prostitution law, the statutory construction analysis in Freeman would be absent. However, the First Amendment concerns would still be there. The Kansas Supreme Court would still probably overturn the conviction on First Amendment grounds. If that happened, one must wonder what the U.S. Supreme Court would do.

Justice O’Connor’s prediction was this:

It is unlikely that four Justices would vote to grant certiorari, since the state court’s decision rests on the adequate and independent state law ground that Freeman’s hiring and paying of performers for pornographic films does not constitute pandering under the State Code. California v. Freeman.

Note that she made no predictions on how the Court would rule on the First Amendment issue. If she did, she probably would have guessed that the Court would have also supported the California Supreme Court’s First Amendment analysis. However, that was a very different Court than the one we have today. Justice Brennan was still on the Court, as was Marshall, and Scalia was still a respectable scholar of the Constitution, who seemed to be more concerned with the rule of law than the results of the decision. He has changed in 20 years. The Roberts court might very well pull a five Justice majority together to support a strong anti-porn decision.

So why doesn’t Kansas give it a whirl?

There appears to be a strong mood of détente between the states and adult film producers. Although a prosecution for prostitution in the making of an adult film in one of the 49 other states might be successful, it might fail. Only an insanely social-conservative prosecutor would seek to apply the law this way. There is no shortage of prosecutors who fit that description, so why aren’t there more prostitution-film cases? Because prosecutors usually aren’t incredibly stupid, and the stakes are very high.

Right now, adult film producers in 49 states occasionally look over their shoulder, worried about a Freeman prosecution. The local smokies can knock on the door and scare them with just such a threat. That uncertainty and fear works wonders. I’m sure that more than one cop’s kids went to college on “tip money” generated by just this kind of fear. If nothing else, it makes adult film producers just a little less brazen than they might otherwise be. That slight chill in the air keeps everyone relatively happy. It gives law enforcement a mental tazer, and it keeps everyone from jumping into the adult film industry, thus reducing competition and maximizing profits for those who dare. Everyone is relatively happy.

Imagine if prosecutor Cletus P. Dinkweeder decided to bring a Freeman type prosecution and his state supreme court followed the Freeman analysis in Kansas. Now Kansas becomes a “porn producers are protected” zone. Worse yet, what if the U.S. Supreme Court finally got a chance to affirm Freeman? Do you think Mr. Dinkweeder will win his next bid for re-election? Not a chance. He’d be lucky not to be tarred, feathered, and set on fire by his local congregation.

So, pretty much everyone looks at Freeman and accepts it as the de-facto law of the land. Given the stakes, I expect that it will remain so.

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