Court Overturns Novel Attack on Pornography : Upsets Film Maker’s Conviction on Pandering for Paying Actors to Perform Sex Acts in Movie

SAN FRANCISCO â€”  The state Supreme Court, rejecting a novel legal assault on pornography, ruled unanimously Thursday that an anti-pandering law cannot be used to prosecute the producers of sexually explicit movies.

The court said that prosecuting film makers for paying actors and actresses to perform actual sex acts in movies that have not been found legally obscene violates the constitutional right to free expression.

“(Such prosecutions) must be viewed as a somewhat transparent attempt at an ‘end run’ around the First Amendment and state obscenity laws,� Justice Marcus M. Kaufman wrote for the court.

‘Social Merit’

The Legislature did not intend such use of a felony anti-pandering statute it adopted in 1982, the court said. If such prosecutions were permitted, the production of “films of unquestioned artistic and social merit, as well as films made for medical or educational purposes,� would be threatened, Kaufman said.

The court overturned the pandering conviction of Harold Freeman, a Hollywood film maker who had turned out more than 100 full-length sex movies as part of an estimated $500-million-a-year “adult� film industry in Los Angeles. No attempt had been made to prosecute the producer on obscenity charges.

Freeman had faced the possibility of a three-year prison term for hiring actresses for up to $800 a day to perform explicit sex acts in a movie called “Caught From Behind II,� a film the producer freely described during his trial as “filth.�

The ruling drew praise from Freeman’s attorney, Dennis A. Fischer of Santa Monica, who called the use of the pandering law against film makers “a classic misappropriation of governmental resources.�

“This means that all such pending prosecutions will be aborted,� Fischer said. “The authorities have got to have egg on their faces over this one.�

However, state Deputy Atty. Gen. Lauren E. Dana, said that the “battle is not over yet� and that the ruling may be appealed to the U.S. Supreme Court.

“This decision will make a lot of porno film producers happy,� Dana said. “But we still believe that these prosecutions pose no chilling effect on the legitimate movie industry or the First Amendment.

“The prosecutions were limited to explicit sex acts, not nudity or caressing or things like that. These people should not be allowed to use a movie camera as a shield against prosecution.�

The court ruling did not come as a surprise to Los Angeles County prosecutors.

Going into the prosecution of the case, “we appreciated the legal arguments advanced by the defendant,� Assistant Dist. Atty. Curt Livesay said.

Livesay said he was nevertheless somewhat disappointed by the ruling because the crackdown had been “an innovative effort on the part of law enforcement to curb the production of these kinds of tapes and movies.�

‘Very Disappointed’

Lt. Fred Nixon, a Los Angeles Police Department spokesman, said the department is “very disappointed--you might even say horrified--by the decision.� He said the department will now consider other tactics to combat pornography.

Thursday’s ruling came only a day after a state legislative committee sidetracked a proposal to re-define obscenity to make it easier to prosecute purveyors of pornographic books and movies.

Under current law, such material must violate contemporary statewide standards to be judged obscene. A bill before the Legislature would allow such material to be reviewed under more flexible local community standards.

Freeman, the president of Hollywood Video Production Co., was convicted in 1985 of five counts of pandering or the procurement of individuals for the purpose of prostitution. The trial judge fined Freeman $10,000 but granted him probation and sentenced him to jail for 90 days, finding that imposing the three-year term in state prison--as required by the 1982 statute--would represent cruel and unusual punishment.

Conviction Upheld

Later, a state Court of Appeal in Los Angeles upheld the conviction but agreed that Freeman should not be sent to prison. Both sides then appealed to the state Supreme Court.

Kaufman’s opinion centered on the fact that the film Freeman made had not been found legally obscene--a finding that would have placed it outside the protection of the First Amendment. Landmark rulings by both the federal and state high court compelled the justices to reject a pandering prosecution of the maker of a film that is not obscene, Kaufman said.

The court rejected contentions by prosecutors that the actors and actresses engaged in prostitution. In this case, money was being paid to the performers for acting--not for the purpose of “sexual arousal or gratification,� which is a necessary element to prove prostitution, the justices said.

‘Prevent Profiteering’

“Punishment of a motion picture producer for the making of a non-obscene film . . . has little, if anything, to do with the purpose of combatting prostitution,� Kaufman wrote. “Rather, the self-evident purpose of the prosecuting authority in bringing these charges was to prevent profiteering in pornography without the necessity of proving obscenity.�

Nor could prosecutors justify the case as a means of thwarting the spread of acquired immune deficiency syndrome or other sexually transmitted disease when they have conceded that no prosecution would be brought if performers were not paid, the court said.

The justices noted further that the sexual acts in the film “were completely lawful� because they involved conduct by consenting adults in a movie studio not open to the public.

In another case Thursday, the court, by a vote of 4 to 3, expanded the length of prison terms that can be imposed on people who commit a forcible sex offense during a series of felony crimes.

Sex Offense

Interpreting a 1979 state statute calling for longer terms for sex offenders, the court, in a majority opinion by Kaufman, held that a defendant may receive a full sentence for a single violent sex offense that is to begin after any other term received.

Dissenters said the law was meant to apply only where there were multiple sex crimes and that the sentence for a single sex offense could be served concurrently with another term.