Is It Legal to Shoot Porn in Your State?
This is the first of a series of articles comparing and contrasting the legal, political, and economic landscapes in California, Nevada, and Florida as they relate to adult film production.
Historically, the vast majority of adult film production took place in Southern California — more specifically Hollywood and the San Fernando Valley. There are numerous reasons for this. In the past, the most important reason was probably the presence of the mainstream motion picture industry. Southern California provides easy access to the talent, equipment, and locations required to make movies. However, technology has changed, making it easier to make movies in other locations whether those movies are PG-rated or adult. Tax credits and other legal incentives have attracted mainstream movie production to Canada, New York, Texas, Georgia and even Michigan. Adult production is relocating as well, often to Florida or Nevada.
Each time California state or local governments seek to increase regulation or otherwise increase the cost of adult film production in California, industry advocates argue that increased regulation will drive the industry out of the state. Often the opposition responds that the industry will never leave California because California is the only state where it is legal to shoot adult films. In recent years, state legislators made this argument when pushing for special taxes on California’s adult film industry and legislation requiring the use of condoms in all adult film production. But, is this true — is California the only state where it is legal to shoot porn?
Those who advance the argument rely on the 1988 California Supreme Court case California vs. Freeman. Harold Freeman was a producer and director arrested and convicted under California’s pandering law which prohibits the procuring of individuals for the purpose of prostitution. The California Supreme Court held that the legal definition of prostitution required that the sexual activity in question be for the purpose, “of sexual arousal or gratification of the customer or of the prostitute.”
The court reasoned that since the purpose of the activity was not to sexually gratify Freeman or the performers, the underlying activity was not prostitution. Therefore, Freeman could not be convicted for pandering. The court went on to state that even if the activity was technically prostitution, “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.”
Those who argue that the industry will not leave California claim that since California is the only state governed by the California Supreme Court, other states might still seek to enforce prostitution and pandering laws against adult film producers. However, although one state is not required to adopt another state’s legal reasoning, a soundly written and well-reasoned opinion can have a persuasive effect on courts of other states. In fact, in 2008 the New Hampshire Supreme Court cited the Freeman case and applied the California Supreme Court’s reasoning to similar facts. In State vs. Theriault, the court found that New Hampshire’s prostitution law violated the New Hampshire and U.S. Constitutions when applied to someone who hired others to engage in sexual activity for the purpose of filming.
In contrast, a 1978 case in New York held that prostitution laws can be applied to adult film making. However, this is an older case decided by a New York trial court. Other courts, including the courts deciding Freeman and Theriault, have criticized the ruling because it relied on an earlier California case involving the illegal filming of an under-aged performer. No similar case has gone to the New York Court of Appeals, which is the highest court of New York. In an era when states are moving to legalize marijuana and same-sex marriage, and the electorate has increasingly embraced libertarianism, it seems more likely than ever that a court faced with similar facts would follow California and New Hampshire’s lead.
There is no controlling law in Florida as to whether the prostitution / lewdness laws apply to the creation of adult content. Lawrence Walters’ firm handled one case (State vs. McGowan) in the Panhandle involving “Ray Guhn,” who was charged with prostitution-based RICO offenses, based on filming group sex scenes for publication on the web. However, the underlying allegations involved both on camera and off camera activity, so the issues got a bit muddied. The prostitution counts were dismissed in exchange for a plea to money laundering offenses, which the client decided to accept. Although prosecutors charged Ray Guhn under Florida’s prostitution laws for filming sexual activity for money, the merits of the case were never tested in court.
Walters also has represented other individuals involved with the production of erotic material who were charged with prostitution (and occasionally obscenity) in either Polk County, or various parts of the Panhandle, but the cases never resulted in any convictions. There do not appear to be any recent cases in Florida where prosecutors advanced the prostitution theory. Most prosecutors do not want to raise the issue due to the inherent risk of creating legal precedent formally opening up Florida as a legally “safe” place to shoot; i.e., by inviting a ruling that the prostitution laws cannot constitutionally apply to production of erotic material.
Florida is a viable place to shoot adult material, but you have to know where you are shooting. There are safe places and potentially dangerous places. Many large content producers are located in South Florida and some in Central Florida. Generally, the farther north you go, the more risk you may encounter.
The Nevada prostitution statute is all but identical to the California statute at issue in Freeman, and likely would receive a similar interpretation by Nevada’s courts. Even if the Nevada statute was not intended to allow pornography production as it is written, it would be very unlikely that the Nevada courts would part ways with Nevada’s closest neighbor, California, and its closest genetic relative, New Hampshire. Nevada’s judiciary has a lengthy history of looking to the courts of California and New Hampshire for guidance. Moreover, Nevada’s social, political, and economic mores are likely to make it at least as friendly as California has been to the adult entertainment industry.
Unlike New Hampshire, the sex industry is nothing new to Nevada’s government or its residents. In fact, the state arguably has a friendlier relationship with the sex industry than any other state in the nation. After all, it is the only state with legalized prostitution. Therefore, using the threat of a prostitution charge to discourage adult content production would pack a lot less of a punch and likely be taken less seriously in Nevada.
Given the similarity of Nevada’s prostitution statute to California’s it would take a stunning display of intellectual dishonesty for the Nevada Supreme Court to reach a contrary conclusion. While lacking California’s robust history with the pornography industry, Nevada has embraced the broader sex industry with some of the country’s most permissive laws for strip clubs, swingers clubs, brothels, and direct-to-you “dancer” services that are heavily advertised on the Las Vegas Strip’s sidewalks. If anything, porn production is the next logical step for Nevada, as its laws have long recognized the expressive and economic importance of adult entertainment.
Also, it is worth noting that last year, the Nevada Legislature moved to change its prostitution statute to define illegal prostitution more broadly. The Randazza Law Group and the ACLU (represented by Allan Lichtenstein) brought the Constitutional implications of such a change to the Legislature’s attention. The Legislature then withdrew that language and specifically noted that it was doing so in order to accommodate the First Amendment issues inherent in such a change. This can only been seen as a positive sign from the Nevada Legislature. While prosecutors may have a different point of view, they likely are paying attention and will take note of the concerns of the elected officials in the Legislature.
This article was jointly written by D. Gill Sperlein who practices in California, Lawrence Walters who practices in Florida, and Marc Randazza whose main office is in Nevada but who also practices in California and Florida. Look for future articles comparing the legal, political, and economic landscapes for adult film production in California, Florida, and Nevada.