Yes, but there are a lot of issues to consider. In California, there is a difference between pornography and prostitution and I’m not talking about the bad acting…from what I’ve heard of course. In the landmark case of People v. Freeman, the California Supreme Court held for an act to be prostitution, the money or other consideration exchanged must be “for the purpose of the sexual arousal or gratification of the customer or the prostitute.” [1] In pornography, the purpose is film-making which is considered a form of expression under First Amendment rights that liberal California holds dearly.[2] Thus, filming yourself doesn’t have to be for commercial profit as long as your actions are protected under the First Amendment, meaning no child porn or other material deemed to be obscene by law.
Now before you aspiring artists think you can go to the local corner with a handheld camera as your ticket out of jail, remember there are important facts in Freeman. The defendant was an established producer in the business and the actors and actresses involved were also known in their respective field. Furthermore, the defendant did not have sex with anyone while creating the movie. There was no evidence that he paid the acting fees for his or the actor’s sexual arousal or gratification. Who knows if the case would have been different had he been taped performing?
Nonetheless, the prosecution would still need to prove intent and they can use a lot of evidence against you. They can introduce factors such as the hired party being a known prostitute, if the area has a reputation for prostitution, or if you have a history of offenses relating to prostitution. These kinds of evidence are not an exhaustive list and the prosecution will look for more things to rebut your porno defense. So otherwise if you want to break into the industry without breaking the law, make sure your intentions are in the right place.
If you’re seeking legal advice, feel free to contact me here at The Law Offices of Mark A. Gallagher: (800) 797-8406 or email: hans.socaldefense@gmail.com
[1] See People v. Freeman, 46 Cal 3d 419. California Supreme Court reversed a lower court judgment ruling defendant Hal Freeman, an adult film producer, guilty of pandering. Pandering is the procurement of persons for the purpose of prostitution. In order to determine Freeman’s culpability for pandering, the California Supreme Court had to define “prostitution.”
[2] Many states criminalize the filming of pornography.
