Indiana Lawyer

In order to understand how commercial pornography prostitution became legal in the United States, one must understand the 1988 California Supreme Court decision of People of California v. Harlod Freeman.  This one decision is substantially responsibly for why the San Fernando Valley is now known as the San Pornando Vally in California.  The legal decision came about because of a less than perfectly worded statute, an activist court and future lack of leadership by both an understanding governor and legislature.

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“California v. Freeman was the criminal prosecution of Harold Freeman, a producer and director of pornographic films, by the U.S. state of California. Freeman was arrested in 1987 for hiring adult actors, which the prosecution interpreted as pimping, as part of an attempt by California to shut down the pornographic film industry. The prosecution’s interpretation was ultimately rejected on appeal by the California Supreme Court. Prior to this decision, pornographic movies had often been shot in secret locations.

Freeman was initially convicted, and lost on appeal to the California Court of Appeal. The trial judge, however, thought jail would be an unreasonably harsh penalty for Freeman’s conduct, and sentenced him to probation, despite the fact that this was explicitly contrary to the statute. The State appealed this sentence but lost.

Freeman appealed to the California Supreme Court, which subsequently overturned his conviction, finding that the California pandering statute was not intended to cover the hiring of actors who would be engaging in sexually explicit but non-obscene performances. Freeman could only have been lawfully convicted of pandering if he had paid the actors for the purpose of sexually gratifying himself or the actors. The court relied upon the language of the statute for this interpretation, as well as the need to avoid a conflict with the First Amendment right to free speech. The court viewed Freeman’s conviction as “a somewhat transparent attempt at an ‘end run’ around the First Amendment and the state obscenity laws.”

The State of California unsuccessfully tried to have this judgment overturned by the United States Supreme Court. Justice Sandra Day O’Connor denied a stay of the California Supreme Court’s judgment, finding that its ruling was founded on an independent and adequate basis of state law. The full Court subsequently denied the petition for review.

As a result of this precedent, the making of hardcore pornography was effectively legalized in California.

In 2008, in the case of New Hampshire v. Theriault, the New Hampshire Supreme Court, citing Freeman, upheld the distinction between pornography production and prostitution in that state.[1]

http://en.wikipedia.org/wiki/California_v._Freeman