Private Porn Shoots! Brilliant? No.

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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.

Screen Shot 2016-11-06 at 1.51.00 PMSo 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.

Last 5 posts by Randazza

Comments

  1. M. Alan Thomas II says

    A lot of prorn these days is produced in part by the performers, but I imagine that in at least some of those cases, payment is essentially royalty-based rather than upfront, which would show both commercial intent and distance the payment from the sex at itself. (Think mom-and-pop productions. Alternatively, imagine how weird it would be for two people to hand each other identical amounts of money for an act they were jointly producing and starring in.) But I'm not an expert on business arrangements in these sorts of things.

    I'm also not sure that analysis works for customers paying for live webcam shows, but I'm not sure if those are within the mainstream porn business.

    I'm amazed that no-one has brought up the fact that actually participating in a quality porn shoot isn't necessarily sexually gratifying. Make all the jokes you want, but it's my impression that six straight hours of sex while being bossed around by a director is neither physically nor emotionally anywhere near as fun as recreational sex.

  2. Paul says

    Posts like this are very comforting. They indicate that any of the possible reasons I may have for needing a defense attorney are almost certainly bound to be light-years from the most foolish or bizarre reasons said attorney has been approached.

    Maybe my life is a little too boring?

  3. Dan says

    CRAP! Back to the drawing board. What if I ran a "church" that took "donations" from "parishioners" who wanted to "meditate" with the "nuns"… even better actually because it's tax-exempt! BRB buying sexy nun outfits

    DISCLAIMER: The above is a joke and I have no intention of doing anything of the sort

  4. Sam says

    Good choice of specialty given your name :)

    The "rand" part of your last name means prostitute in most South Asian/Indian languages. Technically, its "raand" with the a stretched out, but most Indian/Pakistani readers will easily understand it spelled either way.

  5. Spud Hosnick says

    No, long story short: it depends on the circumstances and what the judge/judges decide. Expensive road to travel for what you might think was a "first amendment protected piece of stinkum."

    I'm glad you finally got around to the 2257 records, Mark. There are many traps involved, and hiring an attorney in advance to make sure you have everything in place might make it "difficult" to perform.

    If I'm reading correctly, single producer/director/male performer POV may or may not be legal, even if they show a 2257 disclaimer ('no sexual activity or gratification') or indicate where the records are kept.

    2257 of course, is antiquated. It is posited that porn in the US is only produced in the US and non-US porn isn't distributed here. Aren't porn companies multi-national these days?

    Even more fun: what if the "performers" are visiting the US on a tourist visa and turning tricks on the side?

  6. Dan says

    Reminds me of the old Futurama:

    Bender: "People will pay good money for romance? Hmm, I think I have a scheme so deviously clever that—"
    (Smash cut to courtroom)
    Judge: (bangs gavel) "$500 and time served."
    Bender: "Stupid anti-pimping laws!"

  7. AH says

    All due respect, Marc, but as a lay-person the most obvious sign that you aren't actually a porn producer, rather a pimp with a camera, is that one of your "actors" is paying YOU.

    I don't claim to be an expert in the film industry (adult or otherwise), but my understanding is that, generally, all the talent is paid for their performances (followed by being screwed of of the residuals).

  8. says

    Yeah, that one would be wildly obvious. I just figured in my hypothetical, the "Freeman Brothel" would be smart enough to try and make it look better than that. But, good hypo.

  9. Plastic Gnat says

    I mean, if we're going into that hypothetical, wouldn't the logical transaction be that the customer/"actor" is paying the "director" and/or the "cameraman" for their assistance and labor in the production of a vanity project?

    Of course, that just brings you to the realization that this precise (but legitimate, non-prostitution) scenario is probably occurring and has occurred before.

    …God, why do I get my head wrapped up in thinking about the law? There should be so many better uses for it.

  10. AlanF says

    Dan wrote:

    What if I ran a "church" that took "donations" from "parishioners" who wanted to "meditate" with the "nuns"…

    Sounds like it might work as long as you don't get into the habit.

  11. En Passant says

    Dan says November 7, 2016 at 5:51 am:

    What if I ran a "church" that took "donations" from "parishioners" who wanted to "meditate" with the "nuns"… even better actually because it's tax-exempt!

    A recent case, which began years ago: The Phoenix Goddess Temple. [The Arizona Republic newspaper link]

    From which news report:

    The Phoenix Goddess Temple began operating out of a residence in Scottsdale in 2008 before moving to a Phoenix location after neighbors complained and police made inquiries into church activities.

    In 2010, the temple settled in Phoenix, touting itself as a "neo-Tantra Temple" offering spiritual and touch-based healing services to "seekers" in exchange for donations.​ Some of these healing services included sexual gratification. …

  12. IForgetMyName says

    Bender: "People will pay good money for romance? Hmm, I think I have a scheme so deviously clever that—"
    (Smash cut to courtroom)
    Judge: (bangs gavel) "$500 and time served."
    Bender: "Stupid anti-pimping laws!"

    Things would have turned out differently if he had hired Marc Randazza's head in a jar to defend him.

  13. Lance Weber says

    Nice post. I disfavor prohibitions on prostitution but if Theriault worked courthouse security and used his job to find vulnerable women what he did looks more like predation than speech or art. Good lawyering there helped a connected client beat the rap.

    But as the recent public acceptance of the #SpiritCooking scandal demonstrates, bureaucrats' creepiness, no matter how bizarre, can find safe cover as art. Glad it worked out to make good law in NH.

  14. Noscitur a sociis says

    If I'm understanding you correctly, you think that even if a state's anti-prostitution statute would literally cover the production of pornography, that production would still be protected under the first amendment, but that no one would realistically be able to convince a court that they were producing "real" pornography if they were really just trying to get off. If so, I think Theriault offers a pretty strong counterargument.

  15. says

    Well, Mr. Theriault was, at least, not one of the "performers." That helped his cause a lot. If you get your jollies off of filming porn the First Amendment is going to be a nice comfy blanket that the prosecution is going to have a hard time pulling off of you.

    If you are the director-actor, you'd better be able to bring some more cards to the table.

  16. Law says

    I've heard the best way to protect yourself from a sting is to do nothing the first time but have the prostitute do some nude modeling for you. A cop isn't going to be dedicated enough to making an arrest to actually get naked and start dancing around. I don't know if that's true or the legality of paying for an unlicensed, one person strip club. It probably varies from state to state. But it raises an important point.

    I feel the author is missing the key aspect of why people are asking the question in the first place. The goal is not to legally engage in prostitution; the goal is to avoid getting arrested for prostitution. People get busted for prostitution when they ask an undercover cop (instead of a prostitute) to have sex for money. If you ask an undercover cop to star in your porno, no crime. I guess maybe she'll go along with it in the hopes that you'll mess up at some point before she has to get naked (although I'd guess most would just pass and bust the next guy to come along). But several of the factors the author mentions don't even come into play until after everybody is naked and ready to go, when it is basically a moot point.

    Fundamentally, the goal is a magic question that prostitutes will say yes to and cops will say no to. "Will you star in my porno" is certainly better than "Are you a cop? You have to tell me if you're a cop."

  17. bacchys says

    Quite a bit of modern porno involves people at least pretending to do just that: Point-of-view from the director/actor having sex with the "talent."

    Or so I've heard…

  18. Dan says

    I remember years ago seeing a bona fide porn actress's website where she talked about making custom films for fans who were interested. In the FAQ she was asked if the customer could star in the film, and her response was "probably not, because you'd have to get an STD test, and fly to my location". After reading your post I'm guessing that would count as prostitution, but her profession might at least make the prosecution a bit more challenging?

    Oh, and the abstract to your paper is freaking brilliant!

  19. Scote says

    "After reading your post I'm guessing that would count as prostitution, but her profession might at least make the prosecution a bit more challenging?"

    I would think that going through industry STD testing would be another point in favor of "legal pornography" vs. "illegal prostitution".

    I vaguely recall something related, but in a different legal jurisdiction: A brothel where the service is gratis if the customer allows the session to be video recorded and posted on-line.

  20. Jonathan Hendry says

    Re: 2257s

    What do you mean by "cross-referencing"?

    ….

    AH wrote: "(followed by being screwed of of the residuals)."

    To be honest, the phrase "porn residuals" doesn't bring to mind anything I would want.

  21. spinetingler says

    Is the "director" also starring in the movie.

    That's been pretty common since at least the 1980s. John Leslie comes to mind.

  22. Lawdog says

    There is an establishment in Vegas which solicits "donations" and runs itself as a swinger's club. It's owned by an old married couple who employ their daughter and grand-daughter as bartenders for the on-premises bottle club. Sometimes grandma has been known to get in on the action. Although it has been raided, when I last checked the internet it was still functional as a revenue generating facility. It is a de facto brothel, although from spoken history of frequent attendees your odds of getting lucky are around 50% if you're male. The nature of the place and those who own-operate it is such that it dissuades any rational investigator from further considering that lifestyle. Perhaps you, gentle reader, are not so easily goaded to traditional conduct. If that is so, I wish you good luck.

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