Prostitution and the Making of Pornography

    By J. D. Obenberger, Attorney at Law
    © MMII J. D. Obenberger, All Rights Reserved


    Not that many years ago, I defended a man charged with obscenity and, in the middle of a long conversation with the prosecutor, that State's Attorney suggested that he was likely also to bring prostitution charges as well. My client was a very portly, middle-aged man. I invited the prosecutor to do just that. I told him that I would dress my client up in black hotpants with suspenders and parade him in front of the jury and smile when I told those twelve good jurors that the prosecutor thinks my client is a hooker.

    Those prostitution charges never came and we beat that case cold. Obsecentiy and baseless allegations of child pornography. There were prudent reasons beyond that humor why it would have been unwise for the prosecutor to bring prostitution charges. Should we have prevailed on the expected First Amendment defense, as we expect that we would, that prosecutor risked being the attorney who put a Welcome Sign aimed at pornographers over every entrance to the State of Illinois. Not worth to the prosector his gamble against what that misdemeanor could do to hurt my client.

    The only state in which that issue is a slam-dunk as a matter of law now is California because of State v. Freeman. That decision is firmed-up with recourse not only to the intent of the legislature, but also to First Amendment values, federal and state, and because of the independent state law basis for its decision, federal courts never had a chance to review it.

    The Supreme Court of New Hampshire used the reasoning of Freeman and came to a conclusion quite friendly to the First Amendment and protected expression, concluding (though it's far less than certain that they were intellectually required to do so) that its prostitution statute did not reach paid videography because the prostitution statute in issue required a purpose of sexual gratification that had not been made out by the State. 

    The felony trial court sitting in Manhattan used the reasoning of Freeman to deny a pandering defendant's motion that she was being unfairly prosecuted because pornographers doing the same thing get a pass. 

    When the creation of video was not an issue, when no purpose for the excercise seemed to exist except the sexual gratification of the payor, the courts have shown no willingness to protect this activity on free speech grounds. See what happened to pro-se defendant Steve Wahl, and capably represented former Lutheran Minister Kittilstad. Not a pretty picture for either. 

    Recently, the chief prosecutor in Maricopa County, Arizona, where Phoenix lies, has been loudly proclaiming that the production of porn in his county is subject to prosecution under the prostitution statutes. He's got one case in his quiver, State v. Taylor, or so it appears at first blush - a 1990 case that did not involve the creation of any video for publication or otherwise, just a couple of dancers in a peep show. Curiously, the Arizona Court of Appeals has no issue with the holding in Freeman at all; the Arizona author-jurist distinguishes the facts of Freeman from the facts at bar, distinguishing the immediate arousal of a patron on the other side of the glass from Defendant Tayor from the distant "gratification in the hands of remote consumers" [there is some real artistry involved in that judge's choice of words] involved in videography; the dichotomy between an immediate customer paying for immediate gratification and the film maker producing content for remote gratification by consumers down the line seems to be sharp in all of the cases assessed here, including the Taylor case in Arizona. In order to prevail in prosecuting an adult content producer in Arizona for a prostitution offense related to the essential acts necessary to creat explicit video, he will need to convince Arizona judges to reject the analysis that the Taylor court accepts. I believe that he has an uphill battle - if shooting a porn performance using only paid performers is the only issue. 

    California has gone further down the road from FreemanWooten establishes that, under California's statutes, on the basis of statutory interpretation and not on constitutional grounds, a paid performance of sex between two performers and without contact involving an audience member, even in the absence of a purpose to make video, does not amount to prostitution. The case is apt to issues outside California because it distinguishes the Wisconsin statute applied in Kittilstad and the Arizona statute applied in Taylor as being more inclusive in their sweep than the California statute. Freeman, of course, had two independent bases, both statutory and constitutional, either of which were enough to justify its conclusion reversing the conviction. What a California case understands an Arizona statute to mean will carry little weight in Arizona; it is the Arizona interpretation of what its statute means that counts; but the Arizona court in Taylor pays attention to what Freeman has to say about the First Amendment; there is not so much as a hint of disagreement.

    None of the established cases protect a POV videographer from an allegation of prostitution and the sexual gratification involved in such videography just may be held by the courts to be a distinguishing factor; it creates more risk than exists in hands-off content creation.

    To this point in time, I know of no cases in which the federal Mann Act or the Travel Act have been used against any defendant actually involved in the commerce of adult films, and that may be a function also of the risk involved that a prosecutor might invite, that of creating caselaw enshrining very conspicously the First Amendment protection afforded to sexually explicit commercial videography.

    That having been said, it is an open question how states which have not ruled on the subject may rule in the future; the existence of that risk is probably far more valuable to those who oppose the adult industry's products than a judicial determination of the issue, and it is likely that they know it. No one can predict how the other jurisdictions will rule, and though we believe that the judges in Freeman and Therialut and Paulino got it right, and while it's certainly true that the existence of hard core videography is no secret to every layer of law enforcement in South Florida, Las Vegas, and other regional centers around the country, and while it's true that none of them seem to display any interest in prosecuting them for prostitution offenses essential to video production, none of this amounts to any gurantee that the situation will not change. It should also be added that one's status as an adult video producer offers no immunity to conduct paid auditions off-camera, legitimate or otherwise, that involve sex. Men have gone to prison under charges that include allegations of such conduct.

    
Essential Cases

Cases that protect or distinguish the making of video from the application of prostitution statutes.

Freeman CA

Paulino NY

Theriault NH

Case holding that a private performance without the purpose of video for the enjoyment of a mere spectator is not prostitution [Statutory construction under California law, following Freeman, distinguishing Kittilstad and Taylor on statutory grounds].

Wooten CA

Cases that did not involve the creation of video for publication - and find unvarnished voyeurism for hire to be indistinguishable from prostitution.

Wahl MO

Kittilstad WI

State v. Taylor AZ



             
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This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately, but offer no physical resistance. All matters presented here are subject to the fine print set out elsewhere on this website.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net 

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