Adult Film/Pornography

Hi. Is pornography considered protected speech under the first amendment? And it is legal to view pornography in all fifty states? And thirdly, is it true that it is only legal to make or act in adult films in Los Angeles and New Hampshire, because pornography is considered prostitution in every other state in the US? Thank you in advance for your time.

Hi, Janet -

You ask three questions.

1. Yes. Pornography - erotic images and text - are protected by the First Amendment. If a state tried to make the viewing of nonobscene pornography illegal, the law would not be valid. Obscenity is a crime that punishes a kind of pornography that meets certain legal tests - and if those tests are met, the work is "obscene" and loses its protected status. More about that here, in pretty great detail.

2. Yes, that applies to all of the states.

3. In only two states has the question gone, in recent decades, to the highest court of the state. In both California and New Hampshire, the courts decided that paying money to performers to create an explicit video either was not a crime or could not be made a crime. There are many numerous cases arising in other states when the police became aware of the same situation and declined to proceed with prostitution prosecutions precisely because the prosecutors believed that the courts would reach the same result. Here is a fuller discussion of where the legal authority on this subject stands:

Interestingly, there is a federal statute that makes it a crime to receive obscene material. It has only very rarely been used, typically when the matter involves an interest in children, but where, for some reason technical or otherwise, a child pornography prosecution cannot be advantageously be prosecuted.

Pornography as such cannot be made illegal unless the pornography amounts to obscenity.



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J. D. Obenberger


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, the most comprehensive online legal resource concerning the law of adult entertainment online.


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 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.

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

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

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.

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

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