Texas Pornography Laws?

[Whispers]

Can you pay a person to perform a graphic sexual act for a commercially viable film in the State of Texas?

In California I was "invited" to be an "extra" in background scenes at one of the studios where pornography is being cranked out......

For $800 I could fuck or be sucked all day/evening long as an extra in a legitimate movie being shot..... Yes.. the extra "PAID" to be in the movie......

Just wondering if this kind of "hobby experience" could "legally" be offered in the State of Texas....

Could you commission your own movie to be shot, pay the female performer and be within the confines of the law?

[Mazomaniac]

This is very complicated issue. Whether or not you can get away with it depends on multiple factors: the exact language of the statute in Texas, whether there was evidence you did it for personal "arousal or gratification" and not just commercial or personal expression, the willingness of the local courts and prosecutors to take on the case, and - ultimately - what the US Supreme Court may say about it if you felt like taking that far.

So far only two states - California and New Hampshire - have specifically addressed this issue. In both states production of pornography was found to be an exception to the laws against prostitution. Both rulings were very complicated and involved issues of statutory construction as well as First Amendment expression rights. The key element in both cases was a finding that the defendants were not just paying for sex - they were instead engaging in protected "speech" through the making of the movie. The New Hampshire ruling, in particular, turned on the intent of the defendant to make a commercial film and not just get his rocks off.

It's therefore impossible to say what would happen if you tried it in Texas. Chances are that, if you set it up right as a commercial venture and didn't get in anybody's face, they'll just leave you alone rather than risk having a big losing court fight. You never know, though. They may just decide to come after you and you may just end up spending a couple years on the state's budget - or at least dropping a couple hundred grand on legal fees to win and sleep at home. Hard to call what they'd do and how the courts would handle it.

I do suspect, however, that if ever does get up to the US Supreme Court there's a good chance they'd rule the same way the courts in California and New Hampshire did. There's a pretty damn good First Amendment argument in this one. I think you'd have a winner at the big court if you felt like committing the time and cash to get it.

Cheers,
Mazo.

[Whispers]

Originally Posted by Mazomaniac

I do suspect, however, that if ever does get up to the US Supreme Court there's a good chance they'd rule the same way the courts in California and New Hampshire did. There's a pretty damn good First Amendment argument in this one. I think you'd have a winner at the big court if you felt like committing the time and cash to get it.

Cheers,
Mazo.

So a couple of grand to produce a pay per view video on the web won't cut it I guess!

[Shackleton]

Originally Posted by Mazomaniac

The key element in both cases was a finding that the defendants were not just paying for sex - they were instead engaging in protected "speech"; through the making of the movie.

I think all of Maz's post is pretty good advice. The key thing I'd emphasize is that if this is seen as an attempt to circumvent the prostitution laws by filming the session and then maybe putting it on the web and charging a fee, I think you'd have a much tougher case and one more likely to be prosecuted. If the guy in the film is paying you (and I know you didn't explicitly say that was the case in your original post), then I'm very skeptical a first amendment defense would be successful.

[PODarkness]

Originally Posted by Mazomaniac

The key element in both cases was a finding that the defendants were not just paying for sex - they were instead engaging in protected "speech" through the making of the movie. The New Hampshire ruling, in particular, turned on the intent of the defendant to make a commercial film and not just get his rocks off

I'd say you covered it, except that as I remember New Hampshire v. Theriault, the commercial viability and/or intent of the film was not an issue.

There is no law that says art must be commercial, or intended for a commercial use, in order to get first amendment protection. In the New Hampshire v. Theriault case, there was no evidence that the movie was for commercial release. In fact, the defendant had been arrested, and convicted, by offering a couple $50 an hour to let him watch them have sex. That was pandering. It looks like his lawyer told him to get a video camera if he wanted to try that again.

The second arrest had essentially the same facts, except he offered to pay them for letting him video tape the sex. It appears that as long as the prosecutor can't show evidence of the money being offered or paid in order to facilitate the sexual gratification of any of the participants, it's art, not pandering. If the art happens to be sexually gratifying, it's good art. If the camera man is the only one to ever view the tape, it doesn't mean it's not art.

By the way, for all the armchair lawyers who think they know how to keep from getting arrested... in New Hampshire v. Theriault, no sex ever took place. No money changed hands. No contracts were signed.

The guy was a court bailiff. Basically, he stopped a couple who had just been ordered to pay a large fine and said, "want to make some money?"

A great article on porn, the first amendment, and California

POD

[SneakyCancer]

twisted truth if you ask me. paying to have or watch, commercially or personally should be a choice of our own, not the courts decision. porn is legal in all states but how you acquire it is up for grabs. someone is always paid and/or being gratified. Why else would u fuck or suck or watch if not getting off? Duh....our wonderful legal system. Nail em for fucking but let walk right over border and give them my tax dollars for life.

[trekker]

If you're paying and not receiving any rights to the images being produced, I think that would count as prostitution in most states. I think you're probably contemplating making money on both ends-by the guys paying to be in the pics/video and again by viewers on a paysite. The payer has to receive some rights to the image for it not to be prostitution and copies of the ID of everyone involved have to be given to the person receiving rights to the images to comply with laws against kiddie porn-even if the people are obviously adults. It's kind of like the law considers all porn to be child porn unless you have ID to prove otherwise.

"Could you commission your own movie to be shot, pay the female performer and be within the confines of the law?"

Find a provider who's willing to sign a model/actor release and give you a copy of her DL, passport, or state ID, and fill out a form certifying that her ID is true and listing all the aliases/stage names she's posed under, and you'll be good to go.

[yardape]

I guess if LE were really motivated, the "production" Whispers describes would be more easily prosecuted (as prostitution) than the exhibition of the product (as obscenity). There's as much free porn on the web that was shot in Texas as in any State, I suspect.

[trekker]

I think it would most likely come down to a question of just what the "payer" receives. If all he gets is sexual pleasure and someone else has all the rights to the images, there's a case to be made for prostitution. If the "payer" receives rights to the images and the proper documents to show and/or sell them, you would have a legal production.

[dirty dog]

Check the statutes, Texas as all other states have specifically addressed the issue of making pornography. In Missouri and Kansas is a against the law and you will be charged with promoting prositution.

[PODarkness]

Originally Posted by dirty dog

Check the statutes, Texas as all other states have specifically addressed the issue of making pornography. In Missouri and Kansas is a against the law and you will be charged with promoting prositution.

Can you direct us to the specific Texas statute you are referring to?

[ness]

Here is how Texas address sex actors in the penal code:

http://www.statutes.legis.state.tx.u.../htm/PE.43.htm

(b) An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person solicited.


Pretty harsh huh?

[PODarkness]

Originally Posted by ness

Here is how Texas address sex actors in the penal code:

http://www.statutes.legis.state.tx.u.../htm/PE.43.htm

(b) An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person solicited.


Pretty harsh huh?

Which brings us full circle. Most states laws read like that, and when Cal. tried to use a similar law to shut down the porn industry, they got spanked by the Constitution.

Actor does not, in the context of this law, mean actor in the film / TV / stage sense.

[ness]

California v Freeman never went to the Supremes because Justice O'Conner opined that the California Supreme courts decision was independently and justly based on California law. That kinda leaves Texas out in the cold as far as case law goes, maybe a Texas judge would take a freedom of speech challenge the same way but that hasn't happened yet.

Yea it's using actor as and a person who acts for example on the solicitation, but it states that if the actor is to receive or pay a fee.... I read that section to mean if both parties get paid or pay a class B misdemeanor occurred. My guess that would be an inclusion clause covering two actors being paid by a 3rd party.

YMMV IANAL

[dirty dog]

Missouri and Kansas have statutes that criminalize the making of porn as promoting prostitution.