common question asked by adult webmasters across the United States is:
"Can I create adult content outside the State of California, where
adult films have historically been produced?" The answer is more
complex than one might think.
It is fair to suppose that various forms of erotica have consistently
been produced throughout the country, on one scale or another, since
its inception. Adult materials are certainly available in every state
in the Union, and cannot be outlawed unless legally "obscene"
under the Miller test, because of the First Amendments guarantee
of Free Speech. However, should a curious webmaster trot down to the
local library, or pull up his or her states statutes online, it
will not be long before some law will be found that appears, on its
face, to prohibit paying people to engage in sexual activity. Most assignation,
prostitution, pandering or lewdness laws are written broadly enough
to literally prohibit the creation of any adult content, where money
or other pecuniary gain is exchanged for a sexual performance. How can
the existence of such laws be squared with the widespread availability
of adult materials created all over the United States?
The answer begins with a man named Hal Freeman, a legend in the realm
of adult filmmaking back in the early 80s whose productions included
a film called Caught From Behind, II. For years, adult films were shot
in secret locations, which always changed to avoid the eye of law enforcement.
The concerns were serious in California, pandering carries a
minimum three-year sentence with no possibility of probation.
Despite these concealment efforts, Mr. Freeman was charged and convicted
under Californias "pandering" law, because he was paying
individuals to perform sex acts on camera.1 The filming was
done in private, and all models consented to the acts depicted in the
film. There was no allegation that the movie was obscene. His attorneys
sought to convince the courts that the First Amendment prohibited the
application of pandering laws to the creation of adult materials, even
though they might appear to apply. Ultimately, Freeman won the case,
and the California Supreme Court decided that pandering laws could not
be used as a tool to impose a system of governmental censorship of erotic
materials.2 Specifically, the court held, "[E]ven if
Defendants 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 non-obscene
motion picture would impinge unconstitutionally on First Amendment values."3
An appeal to the United States Supreme Court resulted in a ruling that
the outcome turned independently on construction of California law,
and thus the Supremes refused to get involved.4
Under the protection of that court decision, which is only binding in
the State of California, the adult film industry began to flourish,
particularly in the San Fernando Valley area and Los Angeles. After
the Freeman case, adult films could be created by producers there without
fear of the "knock at the door" by the local cop, armed with
a copy of Californias pandering law, which appeared to prohibit
paid sex on camera. Hal Freeman did not live to enjoy the fruits of
his case, as he perished from cancer shortly after winning his case.
As a result of the proliferation of personal videocassette players in
the homes of middle America, adult fare became readily available in
"Mom and Pop" video stores throughout the country, even though
the content was generally still produced only in the State of California.
That led to an odd state of legal affairs: Adult films depicting sex
acts for money could be sold, but the conduct depicted might be deemed
illegal if undertaken by an individual outside the State of California.
With the introduction of the Internet in the mid-nineties, and the consequent
explosion of adult Websites, adult materials became even more readily
accessible by the average American. Many individuals concluded, based
on the widespread availability of these materials, that creation of
erotic content must be legal. That certainly is a reasonable assumption,
although not confirmed by legal precedent outside the State of California.
Nevertheless, amateur Webmasters began producing various forms of erotica,
for both videos and Websites, throughout the United States. The geographical
areas in which these materials were produced were expanded exponentially
based largely on assumption and conjecture. The small percentage of
content producers, who sought legal advice on the issue, were told something
along the lines of what is contained in this article.
With the widespread availability of online materials came a growing
acceptance of many forms of erotica, including subjects that were previously
considered taboo or off limits. Law enforcement officers and prosecutors
grew more accepting of the presence of adult materials in many communities,
and the Justice Department all but gave up on obscenity prosecutions
during the 1990s under the Clinton Administration. Few, if any, prosecutions
were initiated against individuals attempting to create adult content
outside of the State of California. It, therefore, became generally
assumed that such content could be created in the United States with
little or no risk of prosecution under pandering or prostitution laws.
The critical legal question at this point is whether the Freeman decision
would be followed by other courts in the Country, should a test case
be brought. Thus far, no other States court has considered the
Freeman courts reasoning, so there are no decisions from other
states either approving or rejecting it. A contrary decision would potentially
result in the elimination of a form of free expression and run contrary
to decades of widely-accepted human behavior. That being said, the inapplicability
of state prostitution statutes to the creation of adult content is not
a foregone conclusion, by any means. Take, for example, the well-publicized
case of Tom and Suzy Wahl, the St. Louis husband and wife who sought
to engage in sexual performances for paying customers, to further sex
education. The state applied prostitution laws to those performances
and the couples convictions have been upheld on appeal. In a similarly
conservative jurisdiction, it would come as no surprise if a local prosecutor
would desire to grab some headlines and enforce some morality by bringing
a test case on this issue. For the time being, adult materials continue
to be created throughout this great land a situation that is
unlikely to change any time in the near future.
1People v. Freeman, 250 Cal.Rptr. 589 (Cal. 1988). 2Id. at 425. 3Id. 4California v. Freeman, 488 U.S. 1311 (1988) [OConnor,
J., denying states application for a stay].
Lawrence G. Walters, Esquire is a partner with the law firm Walters Law Group.
Mr. Walters represents clients involved in all aspects of adult media.
The firm handles First Amendment cases nationwide, and has been involved
in significant Free Speech litigation before the United States Supreme
Court. All statements made in the above article are matters of opinion
only, and should not be considered legal advice. Please consult your
own attorney on specific legal matters.
You can reach Lawrence Walters at firstname.lastname@example.org
Metro Orlando Office
Lawrence G. Walters, Esq.
Walters Law Group
195 W. Pine Ave.
Longwood, FL 32750-4104 Voice: 407.975.9150
Toll Free: 800.530.8137