This came up on ASPD, and I did a bit of research. Here's a copy of the post resulting from that research.
Here's what a little research found.
Pornography is protected by the first amendment, unless it is judged to be "obscene". The definition of obscene was determined by the Supreme Court in Miller v California.
Delivering the opinion of the court, Chief Justice Warren Burger wrote,
The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
There is no federal law against making a pornographic movie. If any state wishes to create a law limiting the production of porn, they must do it in a way that does not infringe the First Amendment protection federally mandated. That's tough to do.
California v. Freeman was the criminal prosecution of Harold Freeman, a producer and director of pornographic films, by the U.S. state of California. Freeman was arrested in 1987 for hiring adult actors, which the prosecution interpreted as pimping, as part of an attempt by California to shut down the pornographic film industry. The prosecution's interpretation was ultimately rejected on appeal by the California Supreme Court. Prior to this decision, pornographic movies had often been shot in secret locations.
Freeman was initially convicted, and lost on appeal to the California Court of Appeal. Freeman appealed to the California Supreme Court, which subsequently overturned his conviction, finding that the California pandering statute was not intended to cover the hiring of actors who would be engaging in sexually explicit but non-obscene performances. 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 court relied upon the language of the statute for this interpretation, as well as the need to avoid a conflict with the First Amendment right to free speech. The court viewed Freeman's conviction as "a somewhat transparent attempt at an 'end run' around the First Amendment and the state obscenity laws."
As a result of this precedent, the making of hardcore pornography was effectively legalized in California.
In 2008, in the case of New Hampshire v. Theriault, the New Hampshire Supreme Court, citing Freeman, upheld the distinction between pornography production and prostitution in that state.
Here's a link to a news article about the New Hampshire v. Theriault case.
Offer to tape sex nullifies conviction It's not prostitution but speech, court says
http://www.concordmonitor.com/apps/p...PAGE/812050304
So, you can make a pornographic movie in any state, but California comes closest to putting it in writing, even though their intent was to get rid of the porn industry.
Each state has their own "blue" laws, but they have to be in line with the 1st amendment or they'll end up like California.
If the producer joins the action, or indicates in any way that making the movie will be sexually gratifying to him personally, it's prostitution. If he indicates in any way that his intent is for any of the actors or crew to be sexually gratified, it's pandering.
Like my grandpa used to say, "
Even a fish wouldn't get caught if he kept his mouth shut."
