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II)C)2: California vs. Freeman: The revenge of the magic camera: How illegal actions become constitutionally protected speech.

Every once in a while I have to remind myself that photography is barely 150 years old, and that we, as in all of us, are still pretty freaked out by it. 

For example, a couple of years ago, a pair of teenaged lovers in Florida (she 16, he 17) took some camera phone pictures of themselves making love. Then they sent copies of these pictures to her boyfriend via e-mail. Making and exchanging of photos was discovered by one or the other of these children’s parents, and the end result was that both she and he were convict of making/distributing/possessing child pornography.

The two teenagers involved had the legal right in Florida to have consensual sexual relations with one another, and absent the intervention of their parents and the courts, no one saw the photos in question, save the teenagers who made them. Yet in a 2:1 decision, the appeals court in Florida ruled that the law is the law, and that by photographing themselves doing something that was legal, these teenagers had broken the law, and their conviction was upheld

But the door swings both ways.

As mentioned in previous posts, the 1973 Supreme Court case of Miller vs. California, and the resulting Miller Test did little to clarify when and if a depiction of nudity and/or sexuality was or was not open to criminal prosecution (obscenity) and it did nothing to address whether or not hiring people to have sex for the purpose of making a film was or was not illegal. Producers and performers were open to charges of pandering and prostitution. To this day it’s widely asserted that the reason that New York City was the nexus for the “Golden Age of Porn” was because the Mafia was able to provide the protection from interference by law enforcement needed to making investing such (comparatively speaking) vast sums in the production of an adult movie.

All this would change, when in 1987 California would make the mistake of charging Harold Freeman with pandering in relation to his production of sexually explicit films.

I guess legal theory is relatively. If  I pay Mr. Freeman to bring a woman to my hotel room and have sex with me, she is guilty of prostitution and he is guilty of pandering. 

If  I pay Mr. Freeman to bring a woman and a man to my hotel room and have sex with each other while I masturbate, both the man and the woman are guilty of prostitution and Freeman still is guilty of pandering. 

If you accept that, it’s hardly a stretch to conjecture that if I pay Mr. Freeman to make a film of a man and a woman having sex so that I can watch it and masturbate, he still guilty of pandering. Just as it’s hard for me to imagine how the introduction of a camera into private, legal sex-play between adolescents turns them into child pornographers, it’s hard to imagine how the intermediation of a camera between the sex act –contracted by Freeman, and masturbated to by me – changes an illegal activity into a legal activity.

Except for Miller and the magic camera.

Whatever Miller does or does not provide in terms of clarity about what is and is not obscenity, Miller makes it abundantly clear that the mere depiction of actual sex act does not in and of itself constitute obscenity. And if something is not obscenity then it is constitutionally protected speech.

But California didn’t charge Freeman with making obscene films. California charged Freeman (People v Freeman) with pandering, and won; and with this victory California was on the brink of making itself the porn capital of the world.

The judge in the original trial must not have been very impressed with the case, sentencing Freeman to probation, in director contradiction of California’s minimum three year sentence. Not knowing when to quit, California appealed the sentence and lost.

Whether or not this emboldened Freeman, I don’t know. I do know that following California’s loss of the sentence appeal, Freeman appealed his conviction to the California Supreme Court. Here’s an extract of what the California Supreme Court had to say:

The issues and contentions in this case and their resolution are pervaded by a central fact. The film was not determined to be obscene and for purposes of this review must be deemed to be not obscene. Thus the prosecution of defendant under the pandering statute must be viewed as a somewhat transparent attempt at an “end run” around the First Amendment and the state obscenity laws. Landmark decisions of this court and the United States Supreme Court compel us to reject such an effort…

Since the acts involved here have not been adjudged obscene, they are within the protection of the First Amendment. To subject the producer and director of a non-obscene motion picture depicting sexual conduct to prosecution and punishment for pandering, including a special provision for ineligibility for probation attendant on such a conviction (see fn. 2, ante), would rather obviously place a substantial burden on the exercise of protected First Amendment rights. To include the hiring and paying of actors for acting in such a film within the definition of pandering would therefore unconstitutionally infringe on First Amendment liberties…

Undeniably, one cannot lawfully hire another to commit murder, rape or robbery for the purpose of photographing the act. Murder, rape and robbery and aiding and abetting intercourse with a minor for that matter, are crimes independent of and totally apart from any payment for the right to photograph the conduct.

By contrast, the acts of alleged “prostitution” in this case were not crimes independent of and apart from payment for the right to photograph the performance. The determination that pandering and prostitution occurred here was entirely dependent on the payment for the right to photograph. Indeed, under the People’s theory the payment was used to establish not only the “hiring” but also elements of both the “pandering” (procuring) and the “prostitution” (i.e., lewd acts “for money”). When considered aside from the payment of the acting fees, itself fully lawful otherwise, the sexual acts depicted in the motion picture here were completely lawful. [7] The sexual conduct was between consenting adults and occurred in a place not open to the public. fn. 7 And as we have stated, the film was not determined to be obscene.

The court is between a rock and a hard place. The strong freedom of expression traditions in this country vs the no less engrained tradition of the regulation of sexual behavior by the state, and especially the widely accepted prohibition of the exchange of money for the performance of sex acts.

Only two years earlier the Supreme Court of the United States in the case of Bowers vs. Hardwich had upheld Georgia’s gender neutral anti-sodomy laws when applied to two men, and had punted as to whether or not it would pass constitutional muster when/if applied to a man and a woman; which is to say in 1988 the regulation of sexual conduct, even between consenting adults is very much viewed as the prevue of the state.

And like US vs Ulysses, or Miller v California, the alchemy in People v Freeman is remarkable. The illegal becomes legal and the illegal become legal; all on the basis of who’s reading, who’s watching, who’s paying, who’s photographing, and who is or isn’t getting sexual aroused.

California would take last stab, when in 1988 they appealed to the Supreme Court of the United States. Justice Sandra Day O’Connor reviewed the case, and shot California down:

There is language early in the California Supreme Court’s discussion section observing that “the prosecution of [Freeman] under the pandering statute must be viewed as a somewhat transparent attempt at an ‘end run’ around the First Amendment and the state obscenity laws. Landmark decisions of this court and the United States Supreme Court compel us to reject such an effort.” 46 Cal.3d, at 423, 250 Cal.Rptr., at 599, 758 P. 2d, at 1130. Nevertheless, in light of the subsequent clear holding based exclusively on the state pandering statute, as well as the State Supreme Court’s doubts in its discussion of the First Amendment whether “[ Freeman's] conduct could somehow be found to come within the definition of ‘prostitution’ literally,” id., at 425, 250 Cal.Rptr., at 600, 758 P.2d, at 1131 (emphasis added), I conclude that the state court’s statutory holding is inde- [488 U.S. 1311, 1315] pendent from its discussion of the First Amendment and was not driven by that discussion. Because the decision of the California Supreme Court rests on an adequate and independent state ground, the State of California’s application for a stay of enforcement of the judgment of the California Supreme Court is denied.

And with that, where or not paying people to have sex while photographing them was a settle question in California.

The California Supreme Court ruling does not hold in other states, leading to what First Amendment attorney Marc Randazza describes as a “mood of detente”:

Right now, adult film producers in 49 states occasionally look over their shoulder, worried about a Freeman prosecution. The local smokies can knock on the door and scare them with just such a threat. That uncertainty and fear works wonders. I’m sure that more than one cop’s kids went to college on “tip money” generated by just this kind of fear. If nothing else, it makes adult film producers just a little less brazen than they might otherwise be. That slight chill in the air keeps everyone relatively happy. It gives law enforcement a mental tazer, and it keeps everyone from jumping into the adult film industry, thus reducing competition and maximizing profits for those who dare. Everyone is relatively happy.

While all these legal machinations were going on, Moore’s Law was relentlessly grinding on, doubling processor speed every 18 months. In 1989 I bought a Sony TR5 handicam for about $800. The first thing I did with it was videotape some of my friends kayaking in the Williamette River near Eugene, Oregon. The next thing I did was video tape myself and my girlfriend fooling around in her apartment while her roommate was away for the weekend. In both cases the image quality was a quantum leap from anything I had seen come out of the VHS consumer camcorders.

I also have vague recollection about this time of my previous girlfriend going on about “e-mail”, and there being some sort of scandal in the Springfield, Oregon city counsel around e-mail as well. I had no idea what e-mail was, and I didn’t care.

It was also about this time I got my first clue that sexually explicit cinema didn’t have to be the badly lit, badly acted, shot on video productions I had sampled with both the previous and current girlfriend.

Not too long after our handicam adventure, my girlfriend and I had gotten a hold of Andrew Blake’s Night Trips II, and where other producers had responded to the new economic realities of the home video market by doing away with things like shooting on film and competent editing, Blake had gone the other way. Night Trips II was almost completely stripped of plot and dialog, but it was shot on film, and cut together in with trendy MTV-style editing. Between the two choices, we preferred Blake’s reductionism to incomplete and under produced attempts at feature filmmaking that characterized “adult videos”.

At the same time that Blake was exploring his glossy take on reductionism, another director was also exploring reductionism, only instead of being shot on film in rococo mansions, with sunglass and a sleek eurotrash look, his seminal effort would be shot on video, and feel like a strange ultra-low budget hardcore amalgam of Ross Mc Elwee’s Sherman’s March and the Lethal Weapon franchise.

His name was John Stagliano, and his 1989 insurgent effort The Adventures of Buttman would set the template that had ened up defined the “adult industry” for the next 20 years.

All it would take is for the technology to catch up, and with Moore’s Law grinding away relentlessly, that didn’t take long.

Next up: Buttman, Janet Reno, and The Sony VX1000: The rise of “Gonzo.”

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3 Responses

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  1. Kristoffer V. Sargent said

    TC, you write: “Yet in a 2:1 decision, the appeals court in Florida ruled that the law is the law, and that by photographing themselves doing something that was legal, these teenagers had broken the law, and their conviction was upheld.”

    I think what turned “doing something that was legal” into something “breaking the law” tracks the same intuition that leads us to distinguish public from private — e.g., sex in private is legal, transferring that same sex to the park is illegal. The idea is that photography is essentially a publication. And while two minors may legally get it on, that’s because they are both members of “the protected class” — statutory rape laws create a protected class; a member of a protected class cannot be charged under a statute which creates the class; which is why you never see the 16 year old hottie getting tried as an accomplice.

    Child pornography laws, however, have no protected class (though I think they should be construed as if they did). The crime is the creation, possession, or dissemination of contraband — defined by statute — which means, under the law as written, the minors were guilty of the charge.

    I’m really enjoying your stuff so far, btw.

  2. Tony Comstock said

    I think what turned “doing something that was legal” into something “breaking the law” tracks the same intuition that leads us to distinguish public from private — e.g., sex in private is legal, transferring that same sex to the park is illegal. The idea is that photography is essentially a publication.

    This is the idea that I’ve been rolling around over and over.

    In California v. Freeman, the ruling hinged on the idea that photography is essentially publication, there for, pay people to be photographed having sex isn’t prostitution. In the FLA case, it runs the other way; an essentially private act (making love and making a photographic keepsake said loving-making) becomes de-facto public because “photography is essentially a publication.

    Maybe (maybe) this made some kind of sense in the photochemical age, which such “keepsakes” had to be turned over to a third party to be realized (except for the very few who processed the equipment and expertise to process their film themselves.

    But how about now? If I’m in Utah on a business trip, and my wife is in Alabama and we fool around in iChat are we “publishing” anything? Or just doing what lovers have always done on the telephone? How about if we exchange photos via our phones? Unlike writing, for example, where we understand a private journal, I think we have a very poor understanding of the potential of photography as a private medium.

    (Although at the time of Miller obscenity prosecutions for non-photographic representations were all but unheard of; but in the last few years we’ve had obscenity prosecutions of text only, and drawings.)

    The essentially problematic aspect of sex/photography is that a photo takes how/when the sexuality of the subject will be made public out of the hand of the person(s) depicted. I always warn the subjects of my films that ultimately i cannot control how their images will be contextualized and they have to be ready for seeing their images in contexts they might find upsetting.

    Conversely, depending on context we recognize in-person sexual displays as assaultive, but these sorts of assaults are much harder to police when they come in the form of photographs. You can say “Get over it, it’s just a photography” but that ignores the simple fact that sexual imagery, traumas and triggers are often tightly wound together.

    Which reminds me of an (unsatisfying) back and forth I had with the head honcho of The Independent Film Channel around their broadcast of the film The Bridge, which features actually footage of people throwing themselves off the Golden Gate span.

    What’s got me hung up right now is the idea of how important norms are to fill in the space in the regulation of behavior that laws can’t deal with effectively. I used to think I could be the Rosa Parks of sex/cinema; defiant and dignified. Now I’m not so sure…

    Anyway, glad you’re enjoying you’re reading. Truth be told, I think this blog might be some of the best writing I’ve ever done, and it’s very odd to be developing these ideas so publicly. But it’s also odd to get so little response, so I really appreciate yours!

  3. Kristoffer V. Sargent said

    re: sexual imagery, traumas and triggers are often tightly wound together.

    They are also tuned by culture — to higher, lower and variable sensitivities. I said this a while back in a discussion with Noah about eroticism in film, but our reactions to sexual imagery are immanently contingent. For instance, from a purely logical perspective it shouldn’t matter whether you see the image with one, two, or a thousand people — but it does matter. The more people, the more anxiety is produced around the “appropriateness” of the image. Also, it shouldn’t matter whether you see the image with a friend or mere acquaintance, with a spouse or registered sex offender, with a parent or a priest — but it does matter, often in substantial game-changing ways.

    And longstanding circumstances can leave residues on the mind. For instance, my girlfriend was raised in a prudish southern family, and it’s taken about 10 years for her to not get squirmy when watching a sex scene, even if it’s just me watching it with her. That’s an anecdote, not data, but I think my induction is sound: relearning reactions to sexual imagery is hard.

    In addition to culture, there’s the universal drive to keep sex private, that is, in every culture we have studied, sex is taken behind some kind of wall; sex in public is punished.

    But then again, finite moral circles and xenophobia are human universals, too, and yet Rosa Parks was able to shame them into the shadows by tweaking a deeper commonality called “the affecting perception of injustice.” Of course, I’m sure her status as one of the innocent — quietly dignified, frail black woman riding a bus to work (or church or wherever) — helped to elevate her stand (no pun intended) into a fulcrum for the cause in a way that might be inaccessible for Tony Comstock. No sympathy for the devil, etc.

    Ultimately, there won’t be progress without a broadly sympathetic martyr. Until the majority’s focus shifts from ‘the value of the material’ to ‘the value of the freedom’, society will continue to show you its ass while not allowing you to show them theirs. That’s my belief, at least.

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