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News Analysis: It’s People Vs. Freeman, Florida StyleBy: Mark Kernes (Courtesy of AVN.com)
Pensacola, Fla. – Any of this look familiar?:
"Defendant … hired and paid actors to perform in a nonobscene commercial film which portrayed sexually explicit acts. On that account he was charged with and convicted of five counts of pandering — procurement of persons ‘for the purpose of prostitution’ — under Penal Code section 266i. He appealed contending his conduct did not constitute the crime of pandering. The Court of Appeal affirmed the judgment of conviction."
"This court granted review because of First Amendment concerns and the statewide significance of the issues. Because of the language of the statutes involved and because construction of the pandering statute to make it applicable to the hiring and payment of actors to perform in a nonobscene motion picture would unlawfully impinge upon protected First Amendment rights, we are compelled to conclude the pandering statute was not intended to and does not apply to the conduct here involved and that defendant’s convictions of pandering must be reversed."
They’re the opening paragraphs of the California Supreme Court’s decision in People v. Freeman, upholding the right of a California resident to hire actors to perform, among other duties, sexual acts in a non-obscene hardcore production … and if the courts in Florida want to be fair to that state’s citizens, they’ll take a (if you’ll pardon the expression) long hard look at People v. Freeman in deciding the fates of Clinton "Ray Guhn" McCowen, Patrick Stevens and Andrew Craft, respectively the alleged owner of cashtitans.com, which operated several websites featuring hardcore footage which the company shot, and a producer and general manager of at least one cashtitans.com site.
While details of the cashtitans.com business are unverified, authorities claimed that the various cashtitans.com sites had as many as 5,000 subscribers who paid $30 per month to watch online any of several hundred adult videos featuring as many as 100 local women.
It’s a very interesting situation. Pensacola is at the far western tip of Florida’s panhandle, less than 20 miles from the Alabama border, in the center of what, according to one undercover officer involved in the case, some of cashtitans.com’s employees termed "the frickin’ Bible belt."
According to the Pensacola News-Journal, the affidavit accompanying the arrest warrants in the case said that, "McCowen and his associates recruited and paid local men and women to engage in obscene group sexual activity," and that "[t]he site principals also hired people to engage in ‘private parties’ in which the principals were involved."
While AVN.com has not seen the affidavit in question, if the news reports are accurate, the quoted portions of the affidavit would suggest that the defendants and others attended swing parties which presumably were videotaped, and also hired actors to perform in sexually explicit vignettes. Another charge in an affidavit filed in the case was that defendant Craft paid models to audition for the videos by having sex with them. However, the term "obscene group sexual activity" is a legal conclusion either on the part of the affiant who signed the affidavit, or perhaps simply poor reporting by the local newspaper. The "obscenity" of sexually explicit material involving only adults can only be determined by a judicial finder of fact: Either a jury, or a judge presiding over a bench trial – even in "the frickin’ Bible belt."
"We’ve only recently been engaged and have to investigate the facts much further," said Lawrence G. Walters, a prominent Florida First Amendment attorney who represents McCowen. "I can tell you that there are always going to be constitutional issues in these cases. Before any strategy decisions can be made and any possibility of jury trials can be evaluated, you have to consider what the constitutional issues are. Having just been through the Chris Wilson case, dealing with a website and the use of state obscenity laws, I suspect that many of the similar issues raised in the Wilson case will be applicable here. Given the fact that those issues were not resolved in the Wilson case, there may be another opportunity to address some of them. [However] I think the jurors will be fair and when they hear all the facts – if we get to a jury trial – they will render a fair and impartial verdict."
Beyond the charge of "manufacture and sale of obscene material," though, the defendants have been charged with "racketeering — conducting a criminal enterprise by engaging in prostitution." While that precise verbiage doesn’t appear in the 2005 Florida Statutes, it would appear that the defendants have been charged under Title XLVI Chap. 895, "Offenses Concerning Racketeering and Illegal Debts," possibly under Sec. 796.05, "Deriving support from the proceeds of prostitution," which makes it a third degree felony "for any person with reasonable belief or knowing another person is engaged in prostitution to live or derive support or maintenance in whole or in part from what is believed to be the earnings or proceeds of such person’s prostitution."
A third degree felony in Florida is punishable by a prison term of up to five years and/or a fine of up to $5,000. However, Sec. 775.084 provides that the court must impose a prison sentence if the defendant is found to be a "violent career criminal," which is defined in part as a "defendant [who] has previously been convicted as an adult three or more times for an offense in this state or other qualified offense that is … (e) Lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, or lewd or lascivious exhibition, as described in s[ec]. 800.04."
For purposes of Chap. 895, "prostitution" is defined in Sec. 796.07 as "the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses." However, that section apparently establishes several prostitution-related crimes of its own, to wit:
"(2) It is unlawful:
(a) To own, establish, maintain, or operate any place, structure, building, or conveyance for the purpose of lewdness, assignation, or prostitution.
(b) To offer, or to offer or agree to secure, another for the purpose of prostitution or for any other lewd or indecent act.
(c) To receive, or to offer or agree to receive, any person into any place, structure, building, or conveyance for the purpose of prostitution, lewdness, or assignation, or to permit any person to remain there for such purpose.
(d) To direct, take, or transport, or to offer or agree to direct, take, or transport, any person to any place, structure, or building, or to any other person, with knowledge or reasonable cause to believe that the purpose of such directing, taking, or transporting is prostitution, lewdness, or assignation.
(e) To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.
(f) To solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation.
(g) To reside in, enter, or remain in, any place, structure, or building, or to enter or remain in any conveyance, for the purpose of prostitution, lewdness, or assignation.
(h) To aid, abet, or participate in any of the acts or things enumerated in this subsection.
(i) To purchase the services of any person engaged in prostitution."
Note that "Lewd or Lascivious Conduct" is one of the crimes mentioned in the description of a "violent career criminal" in Sec. 775.084.
Let us, however, jump back to September, 1983, where producer/director Hal Freeman was busted while filming Caught From Behind, Part II at a home in the Los Angeles area. The stars of the film were apparently all booked through Jim South’s World Modeling Agency, and two of the five actresses have just this one XXX credit to their names, while another did just five movies.
"Defendant paid each actor for his or her performance in the film, and paid an additional fee to South for each performer from World Modeling Agency who had been cast for a role in the film," wrote Justice Marcus Kaufman of the California Supreme Court, in his opinion reversing Freeman’s conviction. "Defendant was charged with five counts of pandering based on the hiring of five actresses who performed sex acts in the film. Defendant was not charged with any violation of the obscenity laws in connection with production or distribution of the film and there was no determination the film was obscene." [Citations removed here and below.]
Kaufman, originally from Norfolk, Va., was described by friends as a "redneck with a high I.Q.", and served just three years on the high court before retiring, having previously been appointed to the California Court of Appeals by then-Gov. Ronald Reagan.
"Since the acts involved here have not been adjudged obscene, they are within the protection of the First Amendment," Justice Kaufman wrote. "To subject the producer and director of a nonobscene motion picture depicting sexual conduct to prosecution and punishment for pandering, including a special provision for ineligibility for probation attendant on such a conviction, would rather obviously place a substantial burden on the exercise of protected First Amendment rights. To include the hiring and paying of actors for acting in such a film within the definition of pandering would therefore unconstitutionally infringe on First Amendment liberties. Consistent with Barrows, Burstyn, Burton and Flack and consistent with the principles of statutory construction outlined above we are thus compelled to conclude that the Legislature did not intend the antipandering law to apply to the payment of acting fees for performance in a nonobscene motion picture. We observe that if section 266i were applied in the manner urged by the People, it would include within the literal sweep of the statutory language films of unquestioned artistic and social merit, as well as films made for medical or educational purposes. We reaffirm our observation in Barrows, ‘any more restrictive rule could annihilate in a stroke much of the modern theater and cinema.’"
The Freeman case, of course, was based on laws enacted by the California legislature, although Justice Kaufman evoked the federal First Amendment to justify the majority’s ruling. It is noteworthy that the state never attempted to appeal Kaufman’s ruling to the federal court system, possibly because they feared, even with Warren Burger as Chief Justice of the United States, that an affirmation of the Freeman ruling would open the door to adult video production in all states.
By contrast, Florida’s obscenity statute – Title XLVI Sec. 847.10(a-c) – follows the U.S. Supreme Court’s Miller description, that "[t]he average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest; [d]epicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and [t]aken as a whole, lacks serious literary, artistic, political, or scientific value," with the interesting caveat that, "A mother’s breastfeeding of her baby is not under any circumstance ‘obscene’," and elsewhere, "A mother’s breastfeeding of her baby does not under any circumstance constitute ‘sexual conduct.’"
Therefore, for the defendants here to be convicted of "manufacture and sale of obscene material," the state will have the same burden of proof that it would have in most other jurisdictions – but in terms of the prostitution-based racketeering charge (a charge often leveled against actual prostitutes in Florida), the state courts may very well follow the reasoning of the California Supreme Court, and deem that the production of video features which have not been judged to be obscene should be protected from what Justice Kaufman described as "an ‘end run’ around the First Amendment and the state obscenity laws."
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