Adult Film/Making adult film
I have read and understand no state allows adult film making. Is there a definition on what is considered adult film? I know silly question. Let me go further, is it just the action of putting adults on film in the act of sex or is it the paying models/talent/people to film them in the act of sex that makes it illegal? otherwise known as prostitution. So in a long short question can one make a film but not pay the people, but still comply with 2257, just in case.
Hi, Karl -
Thank you for a great question. It gives me a chance to shine light on some very badly misunderstood parts of the law that frequently get rolled up into misleading generalizations. Your question contains one of them, but often I hear it expressed in statements like "it's only legal to make sexually explicit content in California". People usually like simple answers and so these kinds of statements get tossed around and are accepted. But none of those formulations are entirely accurate.
First, so far as I know, no jurisdiction uses the expression, "adult film", in defining any crimes. Now it's possible that some city or county has a zoning ordinance concerning adult movie houses or porn book stores using that phrase in restricting where adult businesses can locate and creating a local offense out of a zoning or licensing matter, but the focus of your question is about the creation of content, not local zoning and licensing matters.
Second, to produce an OBSCENE work is illegal everywhere in the United States if interstate or international commerce is involved and has been since the adoption of the Adam Walsh act, http://www.xxxlaw.com/section-2257/PL%20109-248%202008%20adam%20walsh%20getdoc.p
effective date July 26, 2006. Before that enactment, federal law only punished such things as transportation or distribution. Not all states have obscenity statutes, but some that do, even California, punishes the production of OBSCENE matter in its Penal Code at Section 311.1 (a). http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file
It is a very long task to explain what is and what is not obscene, but for the purposes of this article I'll say only that the issue is both highly fact-driven (what the video contains and what its appeal and purpose are) and community values-driven. You need to understand the Miller Test as it has evolved. I've written a long piece explaining the law of obscenity which you can find, with links to all of the important cases and statutes, at http://www.xxxlaw.com/obscenity/index.html
. However, you should know that even the Supreme Court of the United States has acknowledged that sexually explicit videos are not necessarily obscene. In Ashcroft v. Free Speech Coalition, it noted that pornography can be banned only if it is obscene. 535 U.S. 234, 240 and it has elsewhere noted a distinction between sexually explicit material and obscene material. Given the history of obscenity trials within the United States during the past thirty years, it can be said with certainty that juries instructed to apply local community standards have acquitted defendants charged with obscenity in cases centering on sexually explicit videos. I've seen it happen. However, each case stands on its own facts, its own video, and its own community. I should add that the statute you mention, 18 USC 2257 adopts definitions contained in Section 2256 that include specific descriptions of oral, anal, and vaginal sex along with masturbation and sadistic and masochistic abuse; though a prosecutor would likely disagree with me, I think that the fact that the federal government, by this statutory definition, regulates movie making of videos that contain real or simulated depictions of these acts tends to establish the legal legitimacy of videos containing these depictions. In my judgment, a statute that flat-out prohibited the making of films that depict intercourse and the other variety of sex acts mentioned in Section 2257, without regard to context, offensiveness, and purpose, would be obviously unconstitutional in light of Miller - and from that, I infer that it cannot be said flatly that the making of such video is illegal per se. The First Amendment just does not allow such a law to stand according to the decisions of the Supreme Court.
Third, the real issue here is whether it amounts to the crime of prostitution to pay people to have sex with one another for the creation of a sexually explicit video. And that's where statements such as that contained in your question come from.
I know of only three cases in recent decades when the issue on the table was squarely whether the making of a video - particularly the making of a sexually explicit video with paid performers - was lawful. In all three cases, the courts considered video-making to be outside the reach of the prostitution statutes. You will find a complete discussion of this issue and links to the deciding cases at http://www.xxxlaw.com/articles/pornography.and.porn.html
Those cases arose from prosecutions in California and New Hampshire for prostitution, and as a response to an argument made in a trial court in New York in the context of a prosecution for another prostitution offense. As my article just linked above makes clear, I think that courts in other jurisdictions are likely to agree in the context of the making of a video, especially with the intent of publishing it. On the other hand, paying people to have sex without a purpose of creating expressive graphic content for publication seems to be quite dangerous. In none of the few cases that have passed through the courts was the issue a POV issue. In other words, the cases deal with other people, performers, having sex, not with the producer himself taking part in the sexual conduct. That's simply an unresolved question everywhere.
That the right to make sexually explicit video for publication is only defined as such in California and New Hampshire does not imply or suggest that it is illegal everywhere else. Each jurisdiction is free to interpret its own prostitution statute - but in doing so, they are bound to consider the implications of their decision in light of the First Amendment and the right of expression that it provides. What I write here is neither legal advice to you or any other person reading these words, I am not your lawyer, I do not provide any guarantees, and there is an inescapable risk that the courts may decide otherwise - but, given the reluctance of law enforcement and prosecutors to charge people with prostitution in the many American jurisdictions in which they know that commercial pornography is being made with hired performers in states far away from California and New Hampshire it seems reasonable to me to believe that I am far from being alone in concluding that, notwithstanding any prostitution statutes, there exists everywhere in the United States a constitutional right to make nonobscene, sexually explicit video for publication with paid performers who exclusively engage with each other.
In my professional judgment, it would be wrong to say that "no state allows adult film making". Wherever it has been put to the test in recent decades, the right to make such videos for publication has prevailed and the prosecutors charging prostitution have failed in the reported cases. But what I am saying does not suggest that any and all sexually explicit depictions are lawful: if they are obscene, they are not protected by the constitution.
Certainly if, as you suggest, the performers are volunteers who are paid nothing and receive nothing of value, in most if not all the jurisdictions, the prostitution statute simply would not apply at all.
Thank you for your interesting question and all best wishes to you.