Is It Illegal to Make Pornography in North Carolina?

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Lawyers Weekly ran a brief article a couple of months ago about the above question. The article is here, behind a paywall. What follows is my own analysis of the issue.

Obscenity. The first issue, and the only one addressed by Lawyers’ Weekly, is whether making pornographic movies would violate the obscenity statutes. Specifically, G.S. 14-190.5 makes it a misdemeanor knowingly to “[p]hotograph [oneself] or any other person, for purposes of preparing an obscene film . . . for the purpose of dissemination” or knowingly to “[m]odel[], pose[], act[], or otherwise assist[] in the preparation of any obscene film . . . for the purpose of dissemination.”

At first glance, that might seem to cover the production of pornography, but Lawyers’ Weekly quoted several lawyers, most of whom waffled on the question. The waffling was entirely justified, because G.S. 14-190.1 defines material as obscene only if it depicts sexual conduct in a “prurient” and “patently offensive way” that “lacks serious literary, artistic, political, or scientific value.” Those terms are incredibly vague, but, of course, are constitutionally required. Miller v. California, 413 U.S. 15 (1973) (establishing the boundaries of obscenity for purposes of the First Amendment). Courts have often found pornographic material to fall outside the definition of obscenity, so at least some pornography probably could be produced in North Carolina without running afoul of the obscenity laws.

Prostitution. But perhaps there is another way to approach the issue. Could producing pornography involve a violation of the prostitution laws? Under G.S. 14-203, prostitution includes having sex or performing any sexual act “for the purpose of sexual arousal or gratification for any money or other consideration,” and there’s a reasonable argument that the people depicted in a pornographic video are doing just that.

Case law from other states suggests that the argument isn’t a slam dunk, though. The best-known case in this area is People v. Freeman, 46 Cal.3d 419 (Cal. 1988), where the Supreme Court of California reversed the conviction of a pornography producer under the state’s pandering for prostitution laws. The court found no evidence that the producer paid the actors for the purpose of sexual arousal or gratification. Essentially, the purpose was making money, and any sexual arousal or gratification was incidental. That strikes me as debatable. If I hire a company to trick out a food truck for my planned mobile donut business, most people would say that I paid the company for the purpose of building a truck, even if my ultimate objective is to make money by selling donuts. And Freeman itself cites cases from other states that come to other conclusions.

Even if there were a violation of the prostitution statutes, the Freeman court continued, “the application of the pandering statute to the hiring of actors to perform in the production of a nonobscene motion picture would impinge unconstitutionally upon First Amendment values.” I think that’s debatable too. If the conduct depicted is otherwise criminal, the First Amendment doesn’t protect it just because it is filmed. In fact, if that were the law, couldn’t a prostitute operate legally simply by being her own “director,” recording the proceedings and giving the recording to the customer?

The bottom line is more waffling. Charging those involved in producing pornography with violating the prostitution laws is a possibility but would raise legal issues. Readers, what do you think of this approach?

Further reading, no pictures. A Rutgers law professor argues that making pornography is protected by the First Amendment and doesn’t constitute prostitution here. Slate asserts here that “[p]orn stars are paid to act,” not to have sex. Also perhaps worth a look are Tonya R. Noldon, Note, Challenging First Amendment Protection of Adult Films with the Use of Prostitution Statutes, 3 Va. Sports and Ent. L.J. 310 (2004), and Jason Shachner, Note, Unwrapped, 24 Health Matrix 345 (2014) (stating that only California and New Hampshire clearly protect the right to produce pornography).

14 comments on “Is It Illegal to Make Pornography in North Carolina?

  1. It is my personal opinion that obscenity ,pornography and prostitution, all fall into one category, WRONG. These things should be outlawed, I find them offensive and totally unnecessary. What purpose do they serve, except to ruin marriages, corrupt our young and offer ways to pursue other bad habit’s like drugs, criminal activities etc. To think that any of these things can be protected by any constitutional amendment makes me want to leave the country. I believe that what goes on behind closed doors by 2 ( or more)consenting adults is their own business but it becomes my business when it is made public. Thank you for your article and a chance to vent.

    • Mind your own business, Roberta. I be you eat donuts and cupcakes, and go to McDonald’s on a daily basis. I find that obscene!

    • Wow, you are one of a kind. Porn causes drug addicted criminals that leave their spouses. I dont like alcohol or, country music, or rap music. But guess what? This country was founded on liberty and freedom and we have lost so much due to ignorant people such as yourself. You are not elite, we can and should be able to do anything we want so long as it doesnt harm another individual. I i were to use marijuana in my house, it would not effect anyone other than myself. If i read my granny on granny magazine in my house, it will not effect anyone other than me.If you ban something far more will be effected. When no one was being harmed. That is totalitarian, which we are heading in that direction, unless the war on drugs is overturned. I digress. The more liberty the better, the less laws the better.

    • You do not have the right to tell someone they cant create what you personally don’t like. That’s what makes America so great. Don’t like porn? Don’t watch it. I don’t like people with [] and bigoted opinions such as yourself, but you’re still entitled to it, same as someone who takes part in porn has that right.

    • I elected you to decide for me my life. I appointed you to tell me what to do. Tell you what, you want to run my life I will send you a bill. Oh, by the way, you might as well get 2 or 3 more jobs because that bill is going to be steep and I intend to live the good life on your dime.

    • You have no right to decide for me what I can watch or read. If you want to tell me what to do then I will send you a bill and you can pay me. Remember, Freedom costs!

  2. Very interesting post. I am just curious if you notified UNC Information Technology Services about your upcoming blog post before you started your research on this topic on a government computer.

  3. Obscenity is an arbitrary and capricious standard.

    If Pornography is protected speech, and it is, then Prostitution, which is required for it must also be protected as a freedom related to speech as well as a separate right of property. It’s not the govts body.

    There is no rational argument to make that the State has the right to control or have ownership over the bodily functions of consenting adults.

  4. Dont understand people….MY opinion, There has to be a mutual agreement on posting pics/videos from all parties, When you are being filmed without your knowledge or consent then you find out that the person you were being intimate with has posted them on porn sites..This is a crime ,this is an INVASION OF PRIVACY.. People who do this do it to ruin peoples lives and to make a couple of coins… ARE YOU KIDDING ME..people who want to do this pron stuff all good ,for the rest of us, If I wanted to do it I would do it for myself so I can get paid…THE men who do this is Disgusting ,perverted and SEXUAL PREDATORS…How come alot of men dont show their faces??

    • I disagree with you on this point. If, for example, my wife or girlfriend film themselves masturbating and sends me the video, then they lose all rights to it. The act of sending me the video becomes a gift. And just like any gift the recipient of that gift can do with it as they please.

      • Good thing revenge laws exist to send people like you to prison.

  5. Its been since 2014 that this article was posted. Now almost 2017, is there a straight answer?

    Professionally produced
    Absolutely age verified adults
    Filmed in complete privacy
    Observing all laws for testing etc

  6. Personaly, I believe prostitution shouldn’t be against the law.

    Men are basically paying for sex when they “date”. We wine and dine you. We buy you gifts ALL with one goal in mind and that’s to get you to have sex with us.

    Lets just get rid of all that time consuming acts of “dating” and get to why we ask women out to start with and pay that woman for her time to have sex with us.

    • Still can get arrested for stalking and other charges

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