Adult Film/porn


Question
I am filming a movie in Texas and one scene shows a woman doing nude yoga outside on a private patio for about an hour...does that material register as porn?

Answer
To "register" as porn doesn't have any legal meaning - though because I'm a lawyer, I'm guessing that, because you sent this question to me, you thought it might have legal significance. No, it doesn't. Just because something is porn does not (without more) make it illegal anywhere in the United States.

What is "porn" is a really, really, truly amorphous question - entirely subjective.

There was a time in our culture when thirteen year old boys got excited by the pictures in National Geographic that depicted topless indigenous people - native female breasts - in Africa. I am not making this up. I know it for a fact. There is an enormously successful Milwaukee businessman and professional - I mean we are talking about a very significant figure in the economic and public life of that city - who lived down the block from me growing up. Really into photography and had his own basement darkroom. He used to send away to obscure little box classified ads in the back of photography magazines to buy undeveloped film that had latent images of naked females. It would arrive, he would develop it, and I'll let you imagine how he probably put them to use - at about the age of fourteen, in a far more innocent age, before the Internet, before Tube Sites, et cetera. I don't think the interest was anatomical, scientific, or artistic. You will laugh. But that's the way it was before the Internet. Sexual excitement is where you find it. In restrictive, religious Islamic secular states, young boys get just as excited as our youth do. In their case, it may be a glimpse of ankle, or imaging what the rest of the face may look like on a girl with hot eyes. Or watching how the wind blows on a burkah to catch a glimpse of female contour and figure. Go figure. In the sense that it can be sexually arousing, I'm guessing that magazines that show unveiled faces of cute girls may functionally be the equivalent of pornography and serve the easily excitable in those cultures. The triggers can vary, even in harshly restrictive environments. Aboard submerged nuclear submarines without women, in prisons, even in monasteries and convents, I'm sure that something or other (that would surprise those of use who live more normal and unsheltered lives) will provide a sexual stimulation equivalent to pornography.

I don't know what "pornography" really is. The law doesn't define it. What is "pornographic" depends on a person and the culture he/she lives in, and is always entirely subjective. Look at the great debate in the Nineteenth Century about the paintings of Goya and others, which because they were more realistic and less stylized, were accused by other artists as being "pornographic".

There are some very naive people who agitate loudly, people who are antagonistic to pornography, people who believe that its suppression and interdiction will cure many social problems, because, they think, sexual stimulation leads to so many problems such as sexual assault, "sexual addiction", teen pregnancy, and dental decay. I think that's poppycock, and one of the reasons I feel that way is my sure knowledge that sexual interest, built and engineered into us by the Creator, is so powerful, that even things that are entirely innocuous will act as sexual triggers. People in prisons and in those nuclear submarines and monasteries and convents will find triggers too. It's not the external stimuli that arouses people - it's the raging craving within each of us that always finds some excuse or another to come out. As a final matter, one man's pornography is another man's bellylaugh.

A movie that contains one scene that lasts an entire hour? It must be a REALLY LONG movie!

I think that maybe you're confusing the difference between pornography and the legally obscene. You'll find some great material explaining that distinction (which is also not without its confusions!) on my website at this page - http://www.xxxlaw.com/obscenity/index.html - and that page links to all of the most important, fundamental cases - judicial decisions - that explain and teach how the law decides whether a particular depiction is legally obscene.

If you came to me professionally for an opinion about legal obscenity in relation to a particular video, I'd be able to apply my knowledge of the law - but before I gave an opinion, I'd want to talk with a local criminal attorney in Texas who has particular knowledge about what obscenity criminal prosecutions have been brought in Texas in recent decades, what the content of the depictions was, and how the cases were resolved, especially if they went to trial. I don't know any lawyers who practice in Texas who have a deep foundation and substantial experience in obscenity law, so the lawyer who advises you may need to come from elsewhere, but make no mistake, getting actual information about what gets charged in Texas and what happens when it is charged, is essential. That having been said, I'd be really surprised to learn that, even in the most religiously conservative parts of Texas, that mere nude yoga is anywhere close to being legally obscene in Texas. And that's because everywhere in the US, for something to be determined to be criminally obscene, it must predominantly appeal to a prurient interest in sex, nudity, or excretion. And, by the way, that judgment is made on the basis of the work as a whole, not just one scene, in the case of movies.

All best wishes! If you want personal, professional legal guidance concerning these issues, feel free to contact me through that website to establish a professional relationship.

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J. D. Obenberger

Expertise

Numerous trials, including jury trials, criminal and civil since 1979. Obscenity. Section 2257. Copyright. Trademark. Communications Decency Act Section 230. Right of Privacy/Right of Publicity. Defamation/Libel/Slander. Warning Pages. Adult Internet Sites. Strip Clubs/Gentlemen's clubs. Massage Parlors. Prostitution. I am the author and operator of http://www.xxxlaw.com, the most comprehensive online legal resource concerning the law of adult entertainment online.

Experience

I've been an attorney for 34 years, nearly 20 years as an attorney concentrating in adult entertainment law. Have spoken at 72 adult webmaster show legal seminars and forums in six nations, seven American states, and three provinces of Canada, have appeared on the O'Reilly factor concerning obscenity, have been published by Thompson-Gale. Full qualifications at xxxlaw.com. My firm, J.D. Obenberger and Associates has provided representation in both criminal and civil matters for adult content producers, the operators of adult online businesses, as well as brick and mortar adult operations for nearly twenty years. We provide legal strategy, forms, protocols, and guidance for every kind of adult operation. Our clients find us available 24/7/365 in every emergency. My background includes numerous jury trials including the defense of major drug case in federal court on the Mexican border at Brownsville, forgery, sexual assaults, gun offenses, aggravated kidnapping, and such civil matters as pharmaceutical malpractice, premises and construction liability, and personal injury. I have prosecuted cases in the name of the United States while serving as a Captain in the United States Army Judge Advocate General's Corps. I have represented and advised clients in every part of the United States and from Hong Kong to Budapest. I am a regular columnist for XBIZ World and have published numerous articles in AVN and AVN Online and for YNOT.

Organizations
First Amendment Lawyers' Association, Free Speech Coalition, National Rifle Association, American Legion.

Publications
AVN, XBIZ, YNOT, Online Pornography, published by Thompson-Gale.

Education/Credentials
Doctor of Law, 1979, University of Wisconsin Law School. Dean's List. Graduate, National Institute of Trial Advocacy. Guest Lecturer, John Marshall Law School. I have presented Continuing Legal Education for practicing attorneys. Undergrad BA, the University of Wisconsin, double major in Political Science and History. Graduate, 90th Basic Judge Advocate General's Course on the campus of the University of Virginia.

Awards and Honors
Army Commendation Medal awarded as a Captain, US Army Judge Advocate General's Corps, as the most requested criminal defense lawyer in the US Army, Europe.

Past/Present Clients
No legal issue too great or too hot to handle, no client too small to deserve zealous and effective representation.

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