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Risky Business?

Risky Business?

August 20, 2007
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" the only court ruling on whether prostitution rules apply to the production of adult content is in California — the Freeman case "

Among the debates that take place between the armchair attorneys who haunt adult webmaster boards, one of the most oft-repeated discussions concerns what seems like a simple enough question on its face: in the U.S. is it legal to shoot adult content outside the state of California?

Any such discussion typically turns immediately to a landmark legal case, California vs. Freeman, and the criminal prosecution of adult film director Harold Freeman on pandering charges, a prosecution widely viewed as an attempt by the state of California to shut down a rapidly growing presence of the adult film industry in the state. Freeman was convicted in 1987 on five pandering charges stemming from payments made to the performers in his adult films.

Following an unsuccessful appeal to the state Court of Appeals, Freeman appealed to the California Supreme Court, which overturned his conviction.

The state Supreme Court found that California's pandering statute was not intended to include the hiring of performers for adult films, and ruled that "in order to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification."

The eventual outcome of the case arguably served to bring the production of adult content in California "out of the shadows," so to speak, and producers in the state have been able to breathe somewhat easier ever since. The fact that no other state has had occasion to reach the same conclusion — that there is a difference between paying for the services of a prostitute and paying performers for adult content production purposes — leads some in the industry to conclude that it is only legal to shoot adult content in California.

As is the case with a great many legal issues, the truth is not as simple — or as clear — as one might hope. Attorney Larry Walters told XBIZ that the source and nature of the court's decision limits the applicability of the case for other jurisdictions.

"The bottom line is that the only court ruling on whether prostitution rules apply to the production of adult content is in California — the Freeman case," Walters said. "The California Supreme Court based its decision on two things: the state constitution and the wording of the California pandering law. As a result, that decision does not apply outside the state of California."

Walters said that the most important question, whether 1st Amendment protections would shield the production of adult content from being considered a form of prostitution, simply was not answered in the landmark California case.

"Freeman didn't reach that," Walters said. "If another state addresses the same question, we may end up with a different standard for that state."

Walters said that one reason why other states have not taken up the porn-as-prostitution argument is that prosecutors in other states saw what happened in California following the Freeman case, and don't want to see a repeat in their own state.

"The reason why this has not come up elsewhere is that authorities don't want to lose such a case and establish their jurisdiction as the next 'porn valley,'" Walters said.

Jeffrey Douglas, 1st Amendment attorney and chairman of the Free Speech Coalition, told XBIZ that while it's true that no other state or court has reached the same conclusion as the Freeman court, it's likely that a court considering a similar case in another state would arrive at the same result.

"I find it hard to believe that a result different from Freeman would be arrived at in other locations, were the issue to be explored by another court," Douglas said. "Essentially what the Freeman court ruled was akin to saying that there is a difference between a battery and the making of a martial arts movie; the primary purpose is for the entertainment of the audience, and not for the impact on the performers."

While the distinction drawn by the California court has not been tested elsewhere, Douglas said that the same logic presumably would apply.

Attorney Reed Lee, president of the 1st Amendment Lawyers Association, concurred with Douglas, and said that "by and large, the 1st Amendment reasoning in Freeman is correct."

"Production of adult content cannot be called prostitution when the people that are paying are not the ones having sex, when they are receiving a release from performers, and [when] there is a clear commercial purpose to the production," Lee said.

Lee cautioned, however, that some types of adult content could be more vulnerable to prostitution charges than others, noting that a standard practice for many gonzo video productions, wherein the same producer who pays for the production also engages in sex acts, "could push close to the line."

The specter of prostitution or pandering charges is not the sole concern for producers of adult content; every attorney XBIZ interviewed for this article cautioned that content producers must be mindful to a wide range of other legal concerns, as well.

Attorney Rob Apgood emphasized that it is incumbent upon content producers and their legal counsel to take a close look at the laws of any jurisdiction where they are considering shooting content.

"When a client asks me 'is it safe to shoot here,' I start out by researching in-depth the area they're considering," Apgood said. "Typically, I look at the zoning ordinances and other relevant laws and at the state, county and municipal levels."

On top of determining whether any local laws or ordinances could prove problematic for his client, Apgood said his other consideration is somewhat less concrete: an assessment of how adult content production might be perceived by local authorities and the general public in the area.

"You can't just ask yourself 'is it legal to shoot here?'" Apgood said. "You must also ask yourself, 'Do I want to shoot here?'"

Apgood noted that even if a prosecution of a content producer is ultimately unsuccessful, it can be a huge hassle and an enormously expensive ordeal. As such, Apgood said it's best to avoid places that are "highly socially conservative."

While he said he researches each situation individually, Apgood said he does have one general piece of advice for his clients looking for somewhere to film adult content: "Stay away from Tennessee."

Separate from the question of whether shooting adult content in U.S. locations other than California is legal is the question of relative risk: Is it safer to shoot in California? If so, how much safer is it?

Lee said that it is in large part the long history of adult content production in Southern California that makes the area a low-risk place to film adult content.

"The city of Los Angeles is fairly comfortable with the production of adult content and issues permits and licenses pretty freely," Lee said. "The administrators and officers who issue permits are used to it, and it's no big deal — so that makes it easier too."

Walters concurred with Lee, adding that the cultural and political atmosphere of the Los Angeles area is favorable as well.

"A lot of communities are not as progressive as Southern California," Walters said.

Attorney Albert Zakarian, who represents adult industry clients in several different states, opined that while the overall risk of shooting content in California might be slightly lower, in his opinion the difference is minimal.

"You could probably say that California is safer," Zakarian said, "but we're talking about infinitesimally smaller a risk when the initial risk of prosecution is already very small."

Zakarian said that in many ways, "it is not so much where, but what you are shooting" that determines the relative risk of shooting your content.

"While from a practical standpoint it's difficult to quantify the different levels of risk of prosecution for producing various types of content, the difference is there and I think most producers know what kind of things are likely to get them in hot water," Zakarian said. "Very few prosecutors bring any case to trial that they don't think is a winner, and I think for the most part they are looking to prosecute the really extreme stuff, since they see more potential for a 'slam dunk' case there."

At the end of the day, much like the complex and uncertain legal standard applied in obscenity prosecutions, the relative risk of shooting content in various parts of the country is difficult to gauge with any real precision.

While it is accurate to say that the Freeman court is the only court to have ruled that adult content production does not amount to an act of prostitution, this does not mean that it is patently illegal to film content elsewhere in the U.S.

It's also fair to say that the prevailing opinion of the experts is that California (or certain parts of it, at least) does present a somewhat lower risk environment for adult content producers than they would find in other states.

According to the legal experts, mitigating risk in producing content is largely a common sense endeavor: Follow zoning rules and other local ordinances, shoot your content discretely, and avoid extreme content that could run afoul of the local community standards, and you are unlikely to find yourself in a prosecutor's crosshairs.

"The bottom line is that you must be thoughtful and sensitive about where you film," Douglas said. "No one in their right mind wants to be a test case — even if the law is on their side. After all, once you are actually being prosecuted, your constitutional rights are cold comfort."


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