The Sunshine State: A Ray of Hope for Content Producers

By: Lawrence G. Walters, Esq.

  1. I. Mandatory Condom Law Spurs Potential Exodus from L.A. Area
In late January, 2012, the city of Los Angles passed a landmark law requiring all adult content producers to mandate the use of condoms by performers as a condition for obtaining a filming permit. This first-of-its-kind, mandatory condom law sent shock waves through the adult industry, and represented a huge victory for the AIDS Healthcare Foundation ("AHF"), which pushed for passage of the law by gathering a sufficient number of signatures to force the City to hold a special election on the issue.[1] Instead of spending four million dollars on a special election, the City Council decided to pass the law on its own.[2] This concern may not be limited to the City of Los Angeles much longer. The AHF has already launched a similar petition drive, attempting to mandate condom use throughout Los Angeles County as a whole, in the hopes of getting the issue on the ballot for the November, 2012 general election.[3] It is certainly possible that L.A. County could react the same way as the City, and simply pass the condom measure on its own without putting the issue to the electorate; effectively disregarding constituent input in its entirety. Reacting to the rumors that the adult industry will move its operations elsewhere, the neighboring Simi Valley City Council reportedly plans to follow suit with its own mandatory condom ordinance. "We are not going to accept the pornographic purveyors from Los Angeles County," Simi Valley Mayor, Bob Huber said when asked to comment on the issue.[4] With the ordinance expected to be introduced in the very near future, Simi\\\\\\'s City Council is currently considering a slightly modified version of the L.A. measure.[5] Under the potential Simi Valley law, content producers would be required to present proof of on-set health care professionals monitoring condom usage, as a prerequisite to receiving a permit to film within the city\\\\\\'s limits.[6] As an additional precaution, the content producer would have a specific time period after completion of each project to submit an unedited copy of the content to the Simi Valley Police Department for confirmation of compliance.[7]
  1. II. Content Producers Consider Their Alternatives
Although the adult industry has been historically centered in the Los Angeles area, the recent, precedent-setting legislation has adult content producers considering a mass exodus to friendlier jurisdictions – even some outside of California entirely.[8] Steven Hirsch, founder of Vivid Entertainment Group, stated that his company would simply move out of the city or the state and film elsewhere, as a likely alternative to complying with the mandatory condom law.[9] Regardless of whether using condoms during erotic video production is a good idea or not, consumers seemingly prefer \\\\\\'bareback\\\\\\' or condom-free content.[10] Many adult performers also view condom usage as a personal choice that they should be allowed to make as opposed to something that should be mandated by the government.[11] As far as the risk of disease, the current industry standard is for performers to be tested for STD\\\\\\'s at least every thirty days while they are working.[12] One adult film star observed that people are more likely to catch a STD from someone outside of the adult industry, given the frequency of STD testing for adult performers.[13] Thus, condom-free films will likely be made somewhere – even if prohibited in the Los Angeles area. Since the adult industry generates an annual revenue stream of eight billion dollars, and 90% of U.S. adult films are currently produced in Los Angeles, the stakes are high. Local and state authorities stand to lose substantial tax revenue should the industry depart from California. However, since it appears that such departure is imminent, production companies are considering their options. Naturally, Las Vegas, Nevada, is under consideration given its close proximity and perceived \\\\\\'adult friendly\\\\\\' climate.[14] However, the state of Florida may also provide a unique opportunity for those considering a move to greener pastures.
  1. III. The Climate in Florida
While Florida politics and law enforcement priorities are inconsistent throughout the state, certain areas of Central and South Florida have been a long-time home to some of the industry\\\\\\'s largest content producers. Several years ago, a Jacksonville newspaper reported on the growing popularity of both professional and amateur adult content production in the state of Florida.[15] The story, which identified several local content producers, noted that Girls Gone Wild regularly visits Florida to capture the company\\\\\\'s world-renowned exhibitionist material.[16] Another company referenced in the article, JacksVids, allowed customers to pay to have sex with a performer on tape, after which the video was uploaded to a site and sold to members.[17] With local law enforcement recognizing that the monetary exchange was for filming, not sex, Sheriff\\\\\\'s deputies had difficulty identifying any actionable criminal conduct. "[T]here are so many constitutional protections, it\\\\\\'s extremely difficult to prosecute. It really has to go way outside society\\\\\\'s norms to come up to the level of criminal," observed a sheriff\\\\\\'s deputy from the Jacksonville – notably one of the State\\\\\\'s most conservative areas.[18] In other locations, such as South Florida, adult content producers have been prospering for years. For over a decade, Miami-Dade County has been home to some of the largest adult content producers and website operators in the business. Also notable is that the high profile (and still controversial) .XXX registry operator, ICM Registry, Inc., calls Palm Beach Gardens, Florida, home.[19] Again, law enforcement in South Florida appears to have come to terms with the existence and legality of the adult industry. In fall of 2004, a local television network conducted an undercover "investigation" exploring the vast world of Miami\\\\\\'s adult content production, probing the amateur "gonzo" niche in particular. When asked to comment for the story, local police conceded that despite the raw, "uncut" nature of gonzo erotica, its production was not illegal.[20] Perhaps the indifference to adult content production can also be partially attributed to Florida\\\\\\'s acceptance of nudity in general, exemplified by the State\\\\\\'s numerous clothing-optional beaches, resorts, and festivals.[21] Offering a safe-haven for those looking to shirk traditional inhibitions, one Florida county has even been dubbed the "North American Capital of Nudism."[22] Florida is quickly becoming a seminal location for the naturist movement; a reputation that could easily benefit adult content producers.[23] This, along with society\\\\\\'s increasing acceptance of the adult industry and erotica in general, bode well for content producers or webmasters considering Florida as a base of operations. That\\\\\\'s not to say that all areas of the state are completely safe for adult industry producers to set up shop. Polk County, Florida for example, is notorious for its routine prosecution of obscenity cases against anyone involved with producing erotic content within its jurisdiction.[24] Polk County Sheriff, Grady Judd, has even gone to the lengths of extraditing an individual from Colorado to face obscenity charges based on sending a book relating to pedophilia to the Polk County jurisdiction.[25] The author has defended at least a dozen obscenity cases emanating from Polk County. Florida\\\\\\'s panhandle, spanning from Pensacola to Tallahassee, has also developed a reputation as a risky area in terms of obscenity prosecutions. In 2006, Pensacola-based webmaster, Clinton McCowen a/k/a "Ray Guhn," was prosecuted by the State Attorney in that jurisdiction based on his alleged involvement with producing adult website material focusing on group sex themes.[26] However, the obscenity, racketeering, and prostitution charges premised on content production were ultimately dismissed, in exchange for the defendant\\\\\\'s guilty plea to financial crimes.[27] Aside from select areas of the State like the Panhandle and Polk County, Florida has generally adopted a \\\\\\'live and let live\\\\\\' approach to the adult entertainment industry in recent times.
  1. IV. Historical Basis for Locating in California
Historically, most adult film production has occurred in California as a result of a ruling from the Supreme Court of California holding that prostitution and "pandering" laws do not apply to the production of adult content in that state.[28] This Court decision gave adult content producers a sufficient level of comfort to enable production of erotic material without fear of arrest for prostitution or "pandering" based on claims that they were paying individuals to engage in sexual activity.[29] Since then, only one other state has been the beneficiary of a similar decision: In 2008, the Supreme Court of New Hampshire likewise held that its state prostitution statute cannot be legally applied to criminalize adult content production, under New Hampshire\\\\\\'s state constitution.[30] While adult content producers did not go flocking to New Hampshire after that decision was rendered, the ruling might have given pause to prosecutors in other states who might have otherwise considered bringing charges against adult content producers under similar prostitution laws. No prosecutor wants to be responsible for bringing the landmark case resulting in their state becoming the latest safe-haven for adult content production. A state attorney who lets that happen on his (or her) watch can kiss any political or judicial aspirations "goodbye." Therefore, a quiet detent has existed in the other forty-eight states (including Florida), where the applicability of prostitution laws to adult content production remains unsettled, with law enforcement generally looking the other way when it comes to such issues.
  1. V. Why Florida?
Turning back to Florida, the adult industry has continued to grow and thrive in the Sunshine State since the early days of the Internet. Some of the reasons for this include the generally progressive community standards in South Florida, the warm climate, and the lack of any state income tax. The cosmopolitan makeup of Miami-Dade County, along with a strong presence from the fashion and modeling industries,[31] results in ready access to many beautiful young women and men who are often willing to perform in erotic-themed material. Also an international travel hub, Miami fosters easy access to a constant supply of fresh faces seeking fame and fortune in the entertainment industry. Florida\\\\\\'s steady climb to the top of the list of locations piquing content producers interests has not gone unnoticed, as evidenced by the decision to hold the 2012 XBIZ Summit in Miami, Florida.[32] Few, if any, obscenity cases have been initiated in South Florida since the embarrassing loss suffered by former Fort Lauderdale Sheriff, Nick Navarro, who attempted to prosecute the producers of 2 Live Crew\\\\\\'s rap album, As Nasty As They Wanna Be, for violation of Florida\\\\\\'s obscenity laws.[33] In that case, the Eleventh Circuit Court of Appeal ruled that the record, while sexually explicit, was not obscene as a matter of law.[34] Other law enforcement officials in the area lost their stomach for obscenity cases after that high profile failure. Similar censorship efforts, dating back almost twenty years, have failed from Tallahassee down to Daytona Beach, Florida as well. The unanimous acquittal of a video store owner brought up on obscenity charges in Tallahassee caused the prosecutor in that case to predict that the area would become a "porn haven."[35] In Marion County, Florida, prosecutors failed in their attempts to prosecute three separate store clerks from a local video store, based on their involvement with the sale or rental of allegedly obscene material.[36] Several years later, in the same jurisdiction, jurors acquitted a man for wearing an allegedly "obscene" T-shirt depicting a nun masturbating.[37] Another controversial state attorney was branded as having "skewed priorities" after losing several obscenity cases in both civil and criminal courts against local video store owners offering sexually explicit material.[38] This failed "porn crusade" ultimately cost the "grandstanding" State Attorney his job, after he was voted out of office largely in reaction to concerns over censorship by the electorate.[39] While it is notable that Paul Little, a/k/a Max Hardcore, was prosecuted in Tampa, and convicted of federal obscenity violations (due to the presence of hosting servers containing the subject material in that jurisdiction), few other federal obscenity cases have been brought in Florida in the last two decades.[40] Further, despite Little\\\\\\'s prosecution, the adult entertainment industry continues to thrive in the Tampa area, which reportedly has the most adult businesses of any metropolitan area in the country, and has been dubbed the "lap dance capital of the world."[41] Even in Orlando, Florida - home of Disney World - adult entertainment companies have prospered and generally been left alone by law enforcement after some unsuccessful attempts to censor adult video stores in the early Nineties.[42] Perceived as the geographic happy-medium between South Florida\\\\\\'s overt sexual freedom and the Panhandle\\\\\\'s more conservative approach towards erotic material, Orlando adult content producers capitalize on what one local newspaper referred to as, "[…] the Florida lifestyle: sunny skies, sandy beaches, palm trees and tan girls in skimpy bikinis."[43] Aside from a friendlier local political climate, Florida tends to afford content producers more bang for their buck – no pun intended – thanks to significantly lower operating costs compared to their West Coast brethren.[44] "Our original plan was to go to California, but it would have been costly so we decided to set up shop here in Florida," observed Leon Bryan of the Orlando-based Demon Seed Pictures.[45] Industry veteran and publisher of AVN Online, M.J. McMahon, accredited Florida\\\\\\'s "large and willing talent base" for its ongoing adult content production success.[46] Moreover, Florida authorities have not targeted adult content producers for workplace safety violations as has CAL-OSHA in California.[47] The well-publicized raids on West Coast adult content studios have threatened the "independent contractor" relationship that most producers have tried to maintain with their performers.[48] There is no "FL-OSHA."[49] That said, in June of 2010, the Florida Department of Health initiated an investigation requested (not surprisingly) by the AIDS Healthcare Foundation, regarding the failure to use condoms in Florida\\\\\\'s "fast growing" adult film industry.[50] The investigation was based on broad health regulations prohibiting the creation of a "sanitary nuisance."[51] Four Florida production companies were named in the investigation; however, the scrutiny appears to have run its course as no further action has been taken since the announcement of the investigation over a year and a half ago, and no new investigations have commenced. Notably, no city or county in Florida has considered any ordinance requiring mandatory condom use by adult content producers.
  1. VI. Conclusion
While Florida may not have the established case law protecting content producers from prostitution charges, like California or New Hampshire, it certainly offers many other attractions: Beautiful models, dynamic cities, temperate climate and perhaps most importantly – no mandatory condom laws. As the Los Angeles area becomes less and less friendly to the adult entertainment industry, production companies are considering their alternatives. Some may discover a bright new future in the Sunshine State. All statements made in the above article involve general information or matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. Lawrence Walters can be reached at larry@firstamendment.com orwww.FirstAmendment.com.

[1] R. Ling II, Landmark condom law for porn filming signed by L.A. mayor, LOS ANGELES TIMES (January 24, 2012), available at: http://latimesblogs.latimes.com/lanow/2012/01/landmark-condom-law-for-porn-filming-signed-by-la-mayor.html.
[2] Id.
[3] Id.
[4] M. Harris, Simi Council to take up adult video condom ordinance, VENTURA COUNTY STAR (January 29, 2012), available at: http://www.vcstar.com/entertainment/simi-council-to-take-up-adult-video-condom-ordinance-ep-363970095-352167801.html.
[5] Id.
[6] M. Harris, Simi researching enforcement option for proposed porn condom ordinance, VENTURA COUNTY STAR(February 15, 2012), available at: http://www.vcstar.com/entertainment/simi-researching-enforcement-option-for-proposed-porn-condom-ordinance-ep-363914125-352150631.html.
[7] Id.
[8] R. Ling II, Porn firms consider leaving L.A. after condom vote, LOS ANGELES TIMES (January 18, 2012), available at:http://latimesblogs.latimes.com/lanow/2012/01/porn-firms-consider-leaving-la-following-mandatory-condom-vote.html.
[9] Id. "Hirsch said porn firms featuring condoms don\\\\\\'t sell as well, because people who watch adult films \\\\\\'are interested in the fantasy aspect of it, so I think they\\\\\\'d rather watch films without condoms\\\\\\'."
[10] Id.
[11] J. Rogers, Los Angeles Council requires condoms in porn films, ASSOCIATED PRESS (January 18, 2012), available at: http://finance.yahoo.com/news/los-angeles-council-requires-condoms-221820808.html.
[12] Id.
[14] R. Ling II, Condoms in porn: Moving industry out of state could be difficult, LOS ANGELES TIMES (January 19, 2012), available at: http://latimesblogs.latimes.com/lanow/2012/01/condoms-in-porn-moving-industry-out-of-state-could-be-difficult.html.
[15] K. Marshall, Porn nearby, FLORIDA TIMES UNION (December 2, 2007), available at: http://jacksonville.com/tu-online/stories/120207/lif_221825643.shtml.
[16] Id.
[17] Id.
[18] Id.
[19] See ICM Registry website, available at: www.icmregistry.com (last visited Feb. 16, 2012).
[20] See, Cops Look at Porn Bus Investigation, ADULT FYI (November 18, 2004), available at:http://www.adultfyi.com/read.php?ID=6992. On November 18, 2004, the South Florida news station and website WPLG ran a video segment and article revealing the staged nature of the videos. A follow-up piece was aired the next day wherein police responded to questions about the legality of the activity and conceded that no laws were being broken in the production of the videos.
[21] Openly embracing a more \\\\\\'international\\\\\\' approach to public nudity, Florida is home to dozens of nude, naturist, and clothing-optional beaches, resorts and events, located throughout the state. See e.g., Haulover Beach (Miami-Dade County); South Beach (Miami-Dade County); Hobe Sound (Martin County); Apollo Beach (Volusia County); St. Lucie Inlet (Martin County); Caliente Resort (Land O\\\\\\' Lakes, FL); Cypress Cove Resort (Kissimmee, FL); Riviera Naturist Resort (Pace, FL); Rooftop Resort (Hollywood, FL); Sunnier Palms (Fort Pierce, FL); Fantasy Fest (Key West, FL); Sunsport Gardens Winter Festival (Loxahatchee, FL).
[22] D. Henthorn, Florida\\\\\\'s Nude & Clothing Optional Guide, ABOUT.COM FLORIDA TRAVEL, available at: http://goflorida.about.com/cs/floridabeaches/a/nude_guide.htm (last visited Feb. 9, 2012).
[23] Id.
[24] J. Gore, Church and State, ORLANDO WEEKLY (February 24, 2011), available at:http://orlandoweekly.com/news/church-and-state-1.1109454.
[25] A. Lengel, Arrest of Author of Pedophile Book Raises Legal Issues, AOL NEWS (December 21, 2010), available at:http://www.aolnews.com/2010/12/21/arrest-of-pedophile-guide-author-phillip-greaves-raises-legal-is.
[26] State v. McCowen, Case Nos.: 06-CF-3051C (Fla. 1st Cir. Ct. 2006) & 07-823-CFA (Fla. 1st Cir. Ct. 2007.)
[27] Id.
[28] People v. Freeman, 250 Cal. Rptr. 589 (Cal. 1988). cert. denied 488 U.S. 1311 (1988) (Pandering laws could not be used as a "tool to impose a system of government censorship of erotic materials.")
[29] For a full discussion on People v. Freeman\\\\\\'s impact on the adult entertainment industry and related issues, see the author\\\\\\'s article regarding the same; L. Walters, Creating Adult Content Outside of California, WALTERS LAW GROUP(August 2007), available at: http://www.firstamendment.com/content-outside-california.
[30] New Hampshire v. Theriault, No. 2007-601 (N.H. Sup. Ct. Dec. 4, 2008) (Banning sex-for-money in all contexts would ban an entire area of constitutionally protected speech.)
[31] See, London Overtakes New York as Top Global Fashion Capital, Language Monitor (August 20, 2011), available at: http://www.languagemonitor.com/fashion/london-overtakes-new-york-as-top-global-fashion-capital. (Listing Miami as one of the top 30 "Fashion Capitals" of the world.)
[32] See 2012 XBIZ Summit website, available at: http://www.xbizmiami.com/index.php (last visited Feb. 9, 2012).
[33] Skyywalker Records, Inc. v. Navarro, 739 F. Supp. 578 (S.D. Fla. 1990) rev\\\\\\'d, 960 F. 2d 134 (11th Cir. 1992).
[34] Id.
[35] Associated Press, Capital to be porn haven, official says, OCALA STAR BANNER (May 20, 1995), available at:http://news.google.com/newspapers?id=BcFPAAAAIBAJ&sjid=xQcEAAAAIBAJ&pg=3188,1125633&dq=meggs+tallahassee+obscenity+community&hl=en.
[36] Illness Keeps Secrets Clerk from Obscenity Trial, OCALA STAR BANNER (Sept. 20, 1995), available at:http://news.google.com/newspapers?nid=1356&dat=19950920&id=98BPAAAAIBAJ&sjid=0AcEAAAAIBAJ&pg=2421,2441534
[37] Jury Acquits Love of Obscenity Charge, OCALA STAR BANNER (Feb. 19, 1998), available at:http://news.google.com/newspapers?nid=1356&dat=19980219&id=g3pRAAAAIBAJ&sjid=NwgEAAAAIBAJ&pg=5349,1335640
[38] R. Tonyan & C. Quintana, Anti-censorship Rally Set For Today Groups, Video Store Owners Will Protest Tanner\\\\\\'s Campaign, ORLANDO SENTINEL (May 5, 1990), available at: http://articles.orlandosentinel.com/1990-05-05/news/9005056634_1_john-tanner-video-spillers.
[39] R. Nolan, State attorney drops primary; recount confirms 54-vote loss, FLAGLER/PALM COAST NEWS-TRIBUNE(September 5, 1992), available at: http://news.google.com/newspapers?id=iYgfAAAAIBAJ&sjid=7dIEAAAAIBAJ&pg=1321,1980088&dq=john+tanner+loss+republican+primary&hl=en.
[40] One exception involved a foreign defendant accused of distributing \\\\\\'scat\\\\\\' material including the infamous 2 Girls 1 Cup video. See, U.S. v. Croce, et al, Case No.: 6:06-cr-00182-GAP-DAB (M.D. Fla. 2007).
[41] P. Rudie, Why Tampa is the lap dance capital of the world, WTSP CHANNEL 10 NEWS (February 23, 2010), available at: http://www.wtsp.com/news/local/story.aspx?storyid=125815.
[42] Associated Press, Pornography Battle Heats Up in Orlando, SARASOTA-HERALD TRIBUNE (January 20, 1990), available at: http://news.google.com/newspapers?nid=1755&dat=19900120&id=6iUhAAAAIBAJ&sjid=GXoEAAAAIBAJ&pg=6797,5210432.
[43] D. Morey, Sex Sells, ORLANDO WEEKLY (August 28, 2008), available at:http://www2.orlandoweekly.com/news/story.asp?id=12578.
[44] Id.
[45] Id.
[46] Id.
[47] See K. Melloy, Calif. To Outlaw Barebacking in Porn?, EDGE BOSTON (June 1, 2011), available at:http://www.edgeboston.com/index.php?ch=news&sc=national&sc3=&id=120259; D. Romero, State Investigates Larry Flynt\\\\\\'s Porn Productions After Complaint About Lack of Condom Use, LA WEEKLY (September 17, 2010), available at:http://blogs.laweekly.com/informer/2010/09/larry_flynt_hustler_investigat.php.
[48] See, Adult Industry Shocked at Employee Status of Adult Performers, AVN (September 18, 2004), available at:http://business.avn.com/articles/video/Adult-Industry-Shocked-at-Employee-Status-of-Adult-Performers-40426.html.
[49] Of course, the federal OSHA has jurisdiction in all fifty states.
[50] See, Florida Health Dept. Investigating Porn Industry Safety Complaints, BUSINESS WIRE (June 24, 2010). available at: http://www.businesswire.com/news/home/20100624005471/en/Florida-Health-Dept.-Investigating-Porn-Industry-Safety. "June 3rd Letter Confirms Chief Legal Counsel for Florida Dept. of Health Has "…Begun an Investigation…" of Health and Safety Complaints Filed Under Florida \\\\\\'Sanitary Nuisance\\\\\\' Statutes against Florida\\\\\\'s Growing Adult Film Industry Over Production of Condom-Less Films in February, AHF Submitted Complaints with 10 Adult Films from four Florida Production Companies Filmed without Condoms That Demonstrate Unprotected Exchange of Bodily Fluids."
[51] Id.