Hypothetically walking the line between pornography and prostitution

Question

Throughout this question I will reference the Texas Penal Code for concrete examples as Texas is my home state.

The Texas Penal Code clarifies explicitly what is considered prostitution in the state in Section 43.02, which I will quote in part here for reference:

Sec. 43.02. PROSTITUTION.

(a) A person commits an offense if, in return for receipt of a fee, the person knowingly:

     (1) offers to engage, agrees to engage, or engages in sexual conduct; or

     (2) solicits another in a public place to engage with the actor in sexual conduct for hire.

(b) A person commits an offense if, based on the payment of a fee by the actor or another person on behalf of the actor, the person knowingly:

     (1) offers to engage, agrees to engage, or engages in sexual conduct; or

     (2) solicits another in a public place to engage with the actor in sexual conduct for hire.

Here, what I intend to demonstrate is that this legislation deems the purchase of a sexual act illegal regardless of on whom it is performed.

Of course, to quote the gist this law professor’s CNN article,

Because the impact of pornography occurs through the mediation of an audience witnessing a performance, rather than an audience receiving physical services from a performer, pornography and its making qualify as First-Amendment protected speech.

What I intend to underscore here is that constitutional law exempts pornography from state legislation about prostitution because of its true purpose.

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A fairly common motif that appears in media (e.g., Sons of Anarchy, Cops, Reno 911!) is to explore different ways to circumvent legislation that prohibits prostitution, mostly—if not entirely—through the scapegoat of an “escort” service.

Consider this hypothetical business concept: a producer operates a custom pornography studio. The customer can visit the studio’s website to view the different content the studio will film as well as the different actors who can be featured. The customer then drafts a script, tallying up the price for different acts, their durations and their doers.

The customer is also free to cast him- or herself (or not) in the video. All the customer must do is prove that he or she is free of sexually transmitted infections and/or diseases. The business does not inquire about the customer’s motivations but does require that all clients respect the consent, or lack thereof, of all parties involved. The customer only pays for what acts are recorded and takes the tape home for private use.

Questions:

1. If this business were located and conducted in Texas, would it be illegal per Sec. 43.02 of the Texas Penal Code?
2. If casting oneself in the pornographic film added a surcharge to the bill, would the customer be considered guilty of prostitution?
3. If the answer to 2 is yes, then could the other parties involved also receive charges despite not knowing the customer’s true motives?

Disclaimer: This is a purely hypothetical situation designed to challenge and promote understanding of the meeting of the First Amendment and Section 43.02 of the Texas Penal Code. I am not soliciting legal advice.

Answer 1

According to a blog post (written by a lawyer who actually has had multiple people ask about that), it depends on several things. The gist is that

they're not getting away with this "brilliant plan" unless they take so many steps to make it look legitimate that it will, in fact, become a legitimate porn production enterprise — in which case, why bother with the ruse in the first place?

To find you guilty of prostitution, a jury would have to be convinced beyond a reasonable doubt that you were guilty of prostitution and not just making porn. But putting a camera in the room doesn't necessarily make it First-Amendment-protected porn; sometimes it just means you're giving them evidence of your crime. Since juries can differ, there's not really a bright line.

But some things look bad to judges and juries. If the director is also doing sexual acts in the film, that looks bad. If he's also never directed or acted in porn before, that looks bad. If a person in the film is paying for the "actresses" instead of getting paid for "acting", that looks very bad; see United States v. Roeder, 526 F.2d 736, 737 (10th Cir. 1975). Having an actual script, on the other hand, may look good.

Keep in mind that if the film is not just pornographic but actually obscene, obscenity laws could still apply even if you convince them it isn't prostitution. The First Amendment does not protect obscene materials.

Additionally, if you claim it's porn, you will need to properly keep records of the names (and all former names/aliases) and dates of birth of your "actors" and "actresses", unless you want to be guilty of a federal felony. This includes making a copy of their photo ID. The records must also made available for inspection by the Attorney General and his inspectors for a minimum of 20 hours per week, with no advance notice given by them. Is everyone involved really going to be OK with all of this - especially since the law specifically notes that the records may be used as evidence in a federal obscenity prosecution?

Answer 2

I do not know that there is a hard-and-fast standard or rule that would be applied, but as I mentioned in my comment above, I assume they would prosecute such an operation the way they would any other prostitution ring or brothel.

With respect to directors who include themselves and/or the fact that the studio also produces films of the same nature, but without any "customer" participation, I think, though vague, it would come down to a sort of balancing test the fact-finder would have to consider. As a similar example, I'd point to the Jacobellis v. Ohio case. There, an adult movie theatre had been shut down under obscenity laws and the court was trying to determine whether constitutional protections apply to those forms of speech which are obscene. In determining what pornography is, Justice Stewart stated this now-famous phrase in his concurring opinion:

I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

So, that was longer way of stating the test for obscenity the court laid out in the decision:

The test for obscenity is whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

Prurient, by the way, means having or encouraging an excessive interest in sexual matters.

Anyway, I think this is the standard that would (or should) apply to a scheme as you outline in your question. Would a reasonable person hear about this place or see an advertisement for it or even go in as a customer and say, "Hmm, this studio is a cover for a brothel." Or, more generally, "This feels like prostitution." If it crossed that line, it would go the way of any other ring. If it didn't cross the line, then arguably it is simply a studio.