Part of it is the fact that the adult model and producer have to fill out paperwork - and that paperwork has to made available to authorities should they want to see it. Makes it a bit more of a legitimate business. Also the fact that the material is shot, edited and then shown to the public - it's hard to argue that the performers are not real models or actresses if their film is actually packaged and presented.
That would be different from just taking a camera to a session with a prostitute.
- jkerouac
- 02-17-2010, 07:02 PM
- PODarkness
- 02-18-2010, 10:26 AM
This came up on ASPD, and I did a bit of research. Here's a copy of the post resulting from that research.
Here's what a little research found.
Pornography is protected by the first amendment, unless it is judged to be "obscene". The definition of obscene was determined by the Supreme Court in Miller v California.
Delivering the opinion of the court, Chief Justice Warren Burger wrote,
The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
There is no federal law against making a pornographic movie. If any state wishes to create a law limiting the production of porn, they must do it in a way that does not infringe the First Amendment protection federally mandated. That's tough to do.
California v. Freeman was the criminal prosecution of Harold Freeman, a producer and director of pornographic films, by the U.S. state of California. Freeman was arrested in 1987 for hiring adult actors, which the prosecution interpreted as pimping, as part of an attempt by California to shut down the pornographic film industry. The prosecution's interpretation was ultimately rejected on appeal by the California Supreme Court. Prior to this decision, pornographic movies had often been shot in secret locations.
Freeman was initially convicted, and lost on appeal to the California Court of Appeal. Freeman appealed to the California Supreme Court, which subsequently overturned his conviction, finding that the California pandering statute was not intended to cover the hiring of actors who would be engaging in sexually explicit but non-obscene performances. Freeman could only have been lawfully convicted of pandering if he had paid the actors for the purpose of sexually gratifying himself or the actors. The court relied upon the language of the statute for this interpretation, as well as the need to avoid a conflict with the First Amendment right to free speech. The court viewed Freeman's conviction as "a somewhat transparent attempt at an 'end run' around the First Amendment and the state obscenity laws."
As a result of this precedent, the making of hardcore pornography was effectively legalized in California.
In 2008, in the case of New Hampshire v. Theriault, the New Hampshire Supreme Court, citing Freeman, upheld the distinction between pornography production and prostitution in that state.
Here's a link to a news article about the New Hampshire v. Theriault case.
Offer to tape sex nullifies conviction It's not prostitution but speech, court says
http://www.concordmonitor.com/apps/p...PAGE/812050304
So, you can make a pornographic movie in any state, but California comes closest to putting it in writing, even though their intent was to get rid of the porn industry.
Each state has their own "blue" laws, but they have to be in line with the 1st amendment or they'll end up like California.
If the producer joins the action, or indicates in any way that making the movie will be sexually gratifying to him personally, it's prostitution. If he indicates in any way that his intent is for any of the actors or crew to be sexually gratified, it's pandering.
Like my grandpa used to say, "Even a fish wouldn't get caught if he kept his mouth shut."
Here's what a little research found.
Pornography is protected by the first amendment, unless it is judged to be "obscene". The definition of obscene was determined by the Supreme Court in Miller v California.
Delivering the opinion of the court, Chief Justice Warren Burger wrote,
The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
There is no federal law against making a pornographic movie. If any state wishes to create a law limiting the production of porn, they must do it in a way that does not infringe the First Amendment protection federally mandated. That's tough to do.
California v. Freeman was the criminal prosecution of Harold Freeman, a producer and director of pornographic films, by the U.S. state of California. Freeman was arrested in 1987 for hiring adult actors, which the prosecution interpreted as pimping, as part of an attempt by California to shut down the pornographic film industry. The prosecution's interpretation was ultimately rejected on appeal by the California Supreme Court. Prior to this decision, pornographic movies had often been shot in secret locations.
Freeman was initially convicted, and lost on appeal to the California Court of Appeal. Freeman appealed to the California Supreme Court, which subsequently overturned his conviction, finding that the California pandering statute was not intended to cover the hiring of actors who would be engaging in sexually explicit but non-obscene performances. Freeman could only have been lawfully convicted of pandering if he had paid the actors for the purpose of sexually gratifying himself or the actors. The court relied upon the language of the statute for this interpretation, as well as the need to avoid a conflict with the First Amendment right to free speech. The court viewed Freeman's conviction as "a somewhat transparent attempt at an 'end run' around the First Amendment and the state obscenity laws."
As a result of this precedent, the making of hardcore pornography was effectively legalized in California.
In 2008, in the case of New Hampshire v. Theriault, the New Hampshire Supreme Court, citing Freeman, upheld the distinction between pornography production and prostitution in that state.
Here's a link to a news article about the New Hampshire v. Theriault case.
Offer to tape sex nullifies conviction It's not prostitution but speech, court says
http://www.concordmonitor.com/apps/p...PAGE/812050304
So, you can make a pornographic movie in any state, but California comes closest to putting it in writing, even though their intent was to get rid of the porn industry.
Each state has their own "blue" laws, but they have to be in line with the 1st amendment or they'll end up like California.
If the producer joins the action, or indicates in any way that making the movie will be sexually gratifying to him personally, it's prostitution. If he indicates in any way that his intent is for any of the actors or crew to be sexually gratified, it's pandering.
Like my grandpa used to say, "Even a fish wouldn't get caught if he kept his mouth shut."
- CHIM222
- 02-18-2010, 01:09 PM
There have been a few court cases about this. The argument is that making porn is in essence a form of expression of art. As in the eye of the beholder. Thank Larry Flynt!!
- jimbo
- 02-20-2010, 09:56 PM
Part of it is the fact that the adult model and producer have to fill out paperwork - and that paperwork has to made available to authorities should they want to see it. Makes it a bit more of a legitimate business. Also the fact that the material is shot, edited and then shown to the public - it's hard to argue that the performers are not real models or actresses if their film is actually packaged and presented.I think this is the key - you must not only want to tape the act, but must show a good faith effort to publish/sell/publicly display the material. Then you are legal. Not good enough if you are making home movies for yourself.
That would be different from just taking a camera to a session with a prostitute. Originally Posted by jkerouac
- PODarkness
- 02-21-2010, 04:40 AM
I think this is the key - you must not only want to tape the act, but must show a good faith effort to publish/sell/publicly display the material. Then you are legal. Not good enough if you are making home movies for yourself.There is no law that says art must be commercial, or intended for a commercial use, in order to get first amendment protection. In the New Hampshire v. Theriault case, there was no evidence that the movie was for commercial release. In fact, the defendant had been arrested, and convicted, by offering a couple $50 an hour to let him watch them have sex. That was pandering. It looks like his lawyer told him to get a video camera if he wanted to try that again.
The second arrest had essentially the same facts, except he offered to pay them for letting him video tape the sex. It appears that as long as the prosecutor can't show evidence of the money being offered or paid in order to facilitate the sexual gratification of any of the participants, it's art, not pandering. If the art happens to be sexually gratifying, it's good art. If the camera man is the only one to ever view the tape, it doesn't mean it's not art.
So, two states have pushed the issue of pornography by using prostitution or pandering laws, and both ended up with supreme court decisions saying pornography is not prostitution, and is protected speech. One case was clearly commercial, the other did not have any evidence of commercial intent. The other 48 states are up in the air (including Texas), but don't seem to want to risk having it backfire on them like it did on California and New Hampshire.
By the way, in New Hampshire v. Theriault, no sex ever took place. No money changed hands. No contracts were signed. The guy was a court bailiff. Basically, he stopped a couple who had just been ordered to pay a large fine and said, "want to make some money?"
A great article on porn, the first amendment, and California