The general rule of thumb in regards to the legal filming of pornographic scenes is that it’s legal in California and not anywhere else. That obviously doesn’t include people who film their private bedroom romps for their own enjoyment, but rather those who film for the purpose of sale and distribution, but not many people know why it’s only legal in California and nowhere else.

Adult film production is legal in California due to a precedent created by a 1988 decision of the CA Supreme Court (California vs Freeman). Harold Freeman, a producer and director, was arrested in 1987 for hiring adult talent. The prosecution labeled it as pimping (huh? roflmao!) as part of an attempt by the State of California at the time to shut down the porn industry in California.

Freeman was initially convicted for this “crime”. The trial judge, however, sentenced him to probation rather than give him jail time. Freeman then appealed to the California Supreme Court, which subsequently overturned his conviction, because they did not agree with the State prosecution’s definition of “pimping” and/or “pandering”. As far as the Supreme Court was concerned, hiring actors to engage in sexually explicit but non-obscene performances was not pandering, and that Freeman could only have been lawfully convicted of pandering if he had paid the actors for the purpose of sexually gratifying himself or the actors.

The California Supreme Court also viewed the conviction as going against Freeman’s First Amendment right to free speech. Although the State of California tried to have the judgment overturned, the petition was denied – thereby making the filming and producing of hardcore pornography legal in the State of California.

The thing about this ruling is that the judgment is only valid in the State of California. No other state has this judgment, and so at this time the filming of pornography is ONLY LEGAL in the State of California. Filming it elsewhere is actually illegal…..

or is it?

Seriously. If anyone in any state in this country was arrested for shooting pornography in their studio or home for the purpose of sale or distribution, at this current time they do unfortunately have to face the possibility of jail time. They have to face the additional possibilities of court costs, lawyer fees, and bail costs. That being said, in the long run I’m pretty sure that a court would end up deciding in favor of the producer because of the precedent set forth in The People vs Hal Freeman.

Unfortunately, you won’t get the money back that you spent in legal fees to defend yourself, but I honestly feel that you have a constitutional right to shoot adult content wherever you like as long as it’s a controlled space – that is, as long as you aren’t subjecting the unconsenting public to it. If they can film movies where they blow up buildings and shoot scenes where people are killing each other in any part of this country, then I think you should be able to have the same right to produce pornographic material.

But that doesn’t mean that you’re still not going to run the risk of having a police officer show up at your door in Las Vegas or New York or Miami with the intent to arrest you. It’s true that law enforcement officers and prosecutors are 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. But again – that doesn’t mean that the worry shouldn’t be there.

There’s currently a case in New Hampshire (really? they shoot porn there? haha, just kidding…) about a bailiff who offered a couple $50/hr to videotape them having sex. The NH Supreme Court ruled that the bailiff is not guilty of prostitution, since “there was no evidence he was satisfying his own sexual pleasure,” and was exercising his First Amendment rights, according to XBiz. The ruling is extremely similar to the Freeman case, and will hopefully allow legalized adult filmmaking in states other than California.

The bailiff is still apparently convicted of another charge of prostitution involving another couple, but that’s another story…

The State of New Hampshire might still outlaw the making of pornography, but in order for that to happen, prosecutors would have to prove that the producer was in it for his own sexual arousal and not for profit. In other words, if you’re going to film a video so that you can be sexually aroused yourself, you shouldn’t pay the people to perform for you – that’s prostitution. If you’re going to film a video and you’re paying the people to perform for you – you better be selling or distributing it.

Also – just because you’re a large production company, the current laws apply. Clinton McCowen of RayGuhn Productions and Max Hardcore both found that out when they were both arrested for their pornographic work in Florida. Sex in exchange for money, regardless of reason or circumstance is considered prostitution in the State of Florida AND every other State in the country. California is the ONLY state that issues permits at this time that allow one to legally produce adult films. And it’s going to stay that way until other states change the wording of their prostitution and pandering laws – sorry.

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