A common question asked by adult webmasters across the United States is: "Can I create adult content outside the State of California, where adult films have historically been produced?" The answer is more complex than one might think.

It is fair to suppose that various forms of erotica have consistently been produced throughout the country, on one scale or another, since its inception. Adult materials are certainly available in every state in the Union, and cannot be outlawed unless legally "obscene" under the Miller test, because of the First Amendment’s guarantee of Free Speech. However, should a curious webmaster trot down to the local library, or pull up his or her state’s statutes online, it will not be long before some law will be found that appears, on its face, to prohibit paying people to engage in sexual activity. Most assignation, prostitution, pandering or lewdness laws are written broadly enough to literally prohibit the creation of any adult content, where money or other pecuniary gain is exchanged for a sexual performance. How can the existence of such laws be squared with the widespread availability of adult materials created all over the United States?

The answer begins with a man named Hal Freeman, a legend in the realm of adult filmmaking back in the early 80’s whose productions included a film called Caught From Behind, II. For years, adult films were shot in secret locations, which always changed to avoid the eye of law enforcement. The concerns were serious – in California, pandering carries a minimum three-year sentence with no possibility of probation.

Despite these concealment efforts, Mr. Freeman was charged and convicted under California’s "pandering" law, because he was paying individuals to perform sex acts on camera.¹ The filming was done in private, and all models consented to the acts depicted in the film. There was no allegation that the movie was obscene. His attorneys sought to convince the courts that the First Amendment prohibited the application of pandering laws to the creation of adult materials, even though they might appear to apply. Ultimately, Freeman won the case, and the California Supreme Court decided that pandering laws could not be used as a tool to impose a system of governmental censorship of erotic materials.² Specifically, the court held, "[E]ven if Defendant’s conduct could somehow be found to come within the definition of "prostitution" literally, the application of the pandering statute to the hiring of actors to perform in the production of a non-obscene motion picture would impinge unconstitutionally on First Amendment values."³ An appeal to the United States Supreme Court resulted in a ruling that the outcome turned independently on construction of California law, and thus the Supremes refused to get involved.⁴

Under the protection of that court decision, which is only binding in the State of California, the adult film industry began to flourish, particularly in the San Fernando Valley area and Los Angeles. After the Freeman case, adult films could be created by producers there without fear of the "knock at the door" by the local cop, armed with a copy of California’s pandering law, which appeared to prohibit paid sex on camera. Hal Freeman did not live to enjoy the fruits of his case, as he perished from cancer shortly after winning his case.

As a result of the proliferation of personal videocassette players in the homes of middle America, adult fare became readily available in "Mom and Pop" video stores throughout the country, even though the content was generally still produced only in the State of California. That led to an odd state of legal affairs: Adult films depicting sex acts for money could be sold, but the conduct depicted might be deemed illegal if undertaken by an individual outside the State of California. With the introduction of the Internet in the mid-nineties, and the consequent explosion of adult Websites, adult materials became even more readily accessible by the average American. Many individuals concluded, based on the widespread availability of these materials, that creation of erotic content must be legal. That certainly is a reasonable assumption, although not confirmed by legal precedent outside the State of California. Nevertheless, amateur Webmasters began producing various forms of erotica, for both videos and Websites, throughout the United States. The geographical areas in which these materials were produced were expanded exponentially based largely on assumption and conjecture. The small percentage of content producers, who sought legal advice on the issue, were told something along the lines of what is contained in this article.

With the widespread availability of online materials came a growing acceptance of many forms of erotica, including subjects that were previously considered taboo or off limits. Law enforcement officers and prosecutors grew 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. Few, if any, prosecutions were initiated against individuals attempting to create adult content outside of the State of California. It, therefore, became generally assumed that such content could be created in the United States with little or no risk of prosecution under pandering or prostitution laws.

The critical legal question at this point is whether the Freeman decision would be followed by other courts in the Country, should a test case be brought. Thus far, no other State’s court has considered the Freeman court’s reasoning, so there are no decisions from other states either approving or rejecting it. A contrary decision would potentially result in the elimination of a form of free expression and run contrary to decades of widely-accepted human behavior. That being said, the inapplicability of state prostitution statutes to the creation of adult content is not a foregone conclusion, by any means. Take, for example, the well-publicized case of Tom and Suzy Wahl, the St. Louis husband and wife who sought to engage in sexual performances for paying customers, to further sex education. The state applied prostitution laws to those performances and the couple’s convictions have been upheld on appeal. In a similarly conservative jurisdiction, it would come as no surprise if a local prosecutor would desire to grab some headlines and enforce some morality by bringing a test case on this issue. For the time being, adult materials continue to be created throughout this great land – a situation that is unlikely to change any time in the near future.

¹ People v. Freeman, 250 Cal.Rptr. 589 (Cal. 1988).
² Id. at 425.
³ Id.
⁴ California v. Freeman, 488 U.S. 1311 (1988) [O’Connor, J., denying state’s application for a stay].