Pornographic Film - Legal Status

Legal Status

In the United States, the Supreme Court held in 1969 that State laws making mere private possession of obscene material a crime are invalid. Further attempts were made in the 1970s in the United States to close down the pornography industry, this time by prosecuting those in the industry on prostitution charges. The prosecution started in the courts in California in the case of People v. Freeman. The California Supreme Court acquitted Freeman and distinguished between someone who takes part in a sexual relationship for money (prostitution) versus someone whose role is merely portraying a sexual relationship on-screen as part of their acting performance. The State did not appeal to the United States Supreme Court making the decision binding in California, where most pornographic films are made today.

At present, no other state in the United States has either implemented or accepted this legal distinction between commercial pornography performers versus prostitutes as shown in the Florida case where sex film maker Clinton Raymond McCowen, aka "Ray Guhn", was indicted on charges of "soliciting and engaging in prostitution" for his creation of pornography films which included "McCowen and his associates recruited up to 100 local men and women to participate in group sex scenes, the affidavit says." The distinction that California has in its legal determination in the Freeman decision is usually denied in most states' local prostitution laws, which do not specifically exclude performers from such inclusion.

In some cases, some states have ratified their local state laws for inclusion to prevent California's Freeman decision to be applied to actors who are paid a fee for sexual actions within their state borders. One example is the state of Texas whose prostitution law specifically states:

An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person solicited.

In the United States, federal law prohibits the sale, distribution or dissemination of obscene materials through the mail, over the broadcast airwaves, on cable or satellite TV, on the Internet, over the telephone or by any other means that cross state lines. Most states also have specific laws banning the sale or distribution of obscene pornography within state borders. The only protection for obscene material recognized by the Supreme Court of the United States is personal possession in the home Stanley v. Georgia.

The Supreme Court of the United States affirmed in Miller v. California that obscenity was not protected speech. Further, the court ruled that each community is responsible for setting its own standards about what is considered to be obscene material. If pornographic material is prosecuted and brought to trial, a jury can deem it obscene based on:

1. whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest
2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law and
3. whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

In many countries pornography is legal to distribute and to produce, however, there are some restrictions. Pornography is also banned in some countries, in particular in the Muslim world and China and India, but can be accessed through the Internet in some of these nations.