I often get asked the question, “why isn’t porn prostitution?” That led to a post a while back, Why is Prostitution Illegal, but Pornography is Not? And, perennially, a reporter will call me up and want a class on it. See, e.g., What’s the Difference Between Porn and Prostitution? Being asked this so many times, I finally wrote a 42 page law review article answering that question in more detail. Suffice to say that I know this shit. Yeah, my mom is super proud.
What I wish I had put in that my law review article is the answer to the now-more-frequent follow up question, “If I bring a camera to a date with a hooker, does that make it legal?” How about if I set up a brothel, but call it a “film studio?”
Nice try.
As I explained in The Freedom to Film Pornography, courts that have considered the issue of porn v. prostitution acknowledge that you can’t just add a camera to a crime and call it “art.” Otherwise, criminals would just strap on a helmet cam and go act like super-predators that haven’t been brought to heel, right?
In the case of pornography, the actors are paid to be in the film, not for the sexual act. They are not filming prostitution, they are filming a sexual performance, and prohibiting this would be an unjustified infringement upon free expression. Accordingly, the state can not use a prostitution statute as a back door prohibition on adult film production.
So where is the line?
It will partially depend on the state. State prostitution statutes fall into two categories: Sexual gratification prohibitions, or sexual contact prohibitions.
If you’re in a gratification prohibition state, like California or New Hampshire, then the law will prohibit you from exchanging money for sexual gratification. However, exchanging money for sexual performances is ok. See People v. Freeman, 758 P.2d 1128 (Cal. 1988); State v. Theriault, 960 A.2d 687 (N.H. 2008). If you’re in a contact state, then the performance might technically fit the prostitution statute, but either the First Amendment or the state constitution’s free speech clause will protect the creation of a bona fide production.
So, why can’t we just stick a tripod up and run a brothel?
I really shouldn’t publish this. I get a handful of calls per year from guys who think they’re the first geniuses to come up with the great idea of setting up a “Freeman Brothel” and calling it a “film studio.” They’re all disappointed when I tell them that they’re not getting away with this “brilliant plan” unless they take so many steps to make it look legitimate that it will, in fact, become a legitimate porn production enterprise — in which case, why bother with the ruse in the first place?
So, lets just go over a few of the details.
If you get arrested, you’re going to need to show that you were indeed creating a film, rather than just creating evidence of a crime. IEven a third-rate prosecutor will be able to call out your bullshit, if bullshit it is.
What makes a bona fide film?
That can be a pretty low standard.
In State v. Theriault, Mr. Theriault came about as close to the line as I can imagine. Robert Theriault was working as a court security officer when C.H. and J.S. came into the court to pay some fines. Theriault learned that the woman was “in a dire financial situation.” He then asked the couple if they “needed employment.”
After informing them that he could not discuss the job at the courthouse, he met them in a parking lot behind a bank. The defendant asked the couple if they wanted to make “f . . . flicks.” The defendant specified the details: he would pay them fifty dollars per hour, he would rent a hotel room, and they would use temperature blankets and different condoms while the defendant videotaped them having intercourse. (Theriault, 960 A.2d at 688)
If that sounds shady, at least Theriault conditioned the offer on the taping taking place in a private hotel room “so [they] didn’t feel uncomfortable.” The State charged him with violating the prostitution statute by offering to pay another to engage in sexual contact.
The New Hampshire Supreme Court succinctly summarized the issues as follows:
The facts boil down to the defendant offering to remunerate the couple to have sexual intercourse while being videotaped. There was no evidence or allegation that the defendant solicited this activity for the purpose of sexual arousal or gratification as opposed to making a video. The State did not charge the defendant under the “sexual contact” portion of the statute and therefore there was no finding by the trial court that the defendant acted for the purpose of sexual arousal or gratification. Thus, if the statute constitutionally prohibits the defendant’s conduct, a request to pay two individuals to make a sexually explicit video would be unprotected under the free speech guarantees of the State Constitution. (Id. at 690)
Despite Theriault’s unorthodox proposal, the only evidence in the record was that Theriault intended to make pornography — not that he was just videotaping his jollies.
So what about your hypothetical “Freeman/Theriault Brothel?”
Lets go over the details…
When you get busted, will there be evidence that you’re actually making a film? Is the “director” also starring in the movie. That’s a pretty sure sign that you’re fucked, so to speak.
In United States v. Roeder, 526 F.2d 736, 737 (10th Cir. 1975) the defendant was prosecuted under the Mann Act. The Mann Act prohibits the interstate transportation of any individual in order to have that person engage in prostitution. Roeder was convicted when he was prosecuted for driving a woman from Missouri to Kansas to be in a porn film. Since Roeder hired her to engage in sexual conduct, drove her across state lines for that purpose, it met the definition of “prostitution.” The Tenth Circuit upheld the conviction. The key fact was that Roeder himself was going to be in the movie along with the woman. Therefore, “he fulfilled not only the broad Supreme Court definition of prostitution, but the more basic and narrower understanding of prostitution by being the ‘customer’ who paid a woman to have sex with him.”
So, are you Roeder? Are you going to pay a girl to screw you on camera? Then don’t expect a Freeman style defense to be easy. Not impossible, but not easy. If not, who is going to film the sex acts? You gonna charge a guy $1,000 to screw a girl, and some other dude is in there with a camera? I can’t even jerk off to a porn video if the camera pans to the dude’s face. I’m gonna bang a girl with someone holding a go-pro aimed at my taint? That might turn some of your clientele on, but that’s not gonna work for mass market.
Who booked the girl? How about the guy? Who is the guy? Is he an actor? Is he someone that anyone wants to see in a porn movie? Sure, that’s just a matter of taste, but if this bust takes place in a hotel room in Vegas, where the “male lead” has the same mass-market sexual appeal of Karl Rove, and he just so happens to be in town for the National Association of Manufacturers conference, and he is starring in his first porn production, and the production took place on Saturday night after a bunch of drinks and blow, how the fuck do you think it looks, dumbass?
Ok, lets say that it looks legit. Frankly, at that point, it looks about as legit as a rusty 1976 Econoline van with “FREE CANDY” spray painted on the side, with you driving in a clown suit with an ether soaked rag in your hand. But, if you already got this far, and you’re not yet convinced, you’re a special kind of stupid… so lets continue.
Lets see your 2257 records.
What are those?
What are those, asks the “porn producer?” Those are required for any commercial porn, or porn that you think might wind up being commercial, under 18 U.S.C. § 2257? Did you take a copy of the two (or more) actors’ ID cards? Did you keep them? Did you cross reference them? No? That’s a five year felony, you imbecile.
So you’re gonna tell Charlie Conventioneer that he can come to your handy dandy Freeman Brothel, and all he has to do is pay you for the girl, AND let you take a copy of his ID, and then he bangs the girl while some other guy runs around the room filming it?
And even if he agrees to all that, you still might not win.
How about other facts? Do you have any storyboards? Do you have any scripts? Ok, lots of porn productions don’t. Do you have a business plan? Any way that you intend to distribute it? What kind of camera are you using? Is this your first porn video?
Are you really going to argue that this is just for your private collection? Do you HAVE a private collection? If it is for a private collection, how did all these people wind up in your hotel room?
There is no one fact that will be dispositive, and you could certainly be a rank amateur, like Theriault, and get away with it — but, if you’re just trying to throw a First Amendment cover over genuine prostitution, no judge or jury is likely to believe you.
But, by all means, give it a try.
I’ll do my best to defend you, but you’re gonna have to pay your money up front.
No, it isn’t going to be cheap.
Marc Randazza is the national president of the First Amendment Lawyers Association
