Supreme Court Exonerates Film Maker of Pandering

SAN FRANCISCO — Pornographic film makers cannot be convicted of pandering for paying actors who engage in sex acts in movies, the California Supreme Court ruled today.

Sexual acts in film making are protected free speech rights, the court unanimously held in overturning the conviction of Hollywood film maker Harold Freeman on five counts of pandering in the film, “Caught From Behind II.”

His prosecution “must be viewed as a somewhat transparent attempt at an ‘end run’ around the First Amendment and the state obscenity laws,” Justice Marcus M. Kaufman wrote.

Makers and producers of mainstream motion pictures had expressed concern that if the court allowed the conviction to stand, it could be used as the basis for challenging less explicit sexual acts in their films.

Pandering refers to anyone who hires another person for the purpose of prostitution.

No Obscenity Charge

Prosecutors did not attempt, in the 1983 case, to convict Freeman or his adult movie production firm, Hollywood Video Production Co., of producing an obscene film.

“A non-obscene motion picture is protected by the guarantee of free expression found in the First Amendment,” Kaufman wrote.

Prosecutors argued that despite free speech protections, the state has an interest in stopping sex acts in movies to prevent profiteering from prostitution and to prevent the spread of sexually transmitted diseases, such as AIDS.

But the state conceded that under its interpretation, an identical movie could be made legally if performers were not paid.

Kaufman said the law defines prostitution in terms of a lewd act, which requires the touching of genitals “for the purpose of sexual arousal or gratification of the customer.”

No Evidence of Intent

Kaufman noted that acting fees were the only payments involved in the case against Freeman.

“There is no evidence that (Freeman) paid the acting fees for the purpose of sexual arousal or gratification, his own or the actors’,” Kaufman wrote.

Freeman had been convicted by a jury on all five counts. Although the pandering law prohibits probation, he was given five years probation, 90 days in jail and ordered to pay restitution of $10,000.

Although both men and women actors were hired for the sex acts, Freeman was charged with five pandering counts based on the actions only of the female actors.

In other action today, the court upheld three death sentences on split votes. The decisions in the cases of John G. Brown, 40; Maurice Keenan, 37, and Charles McDowell Jr., 34, bring the court’s total to 35, out of 47 capital appeals considered, since conservatives gained a majority on the panel last year.