Upholding a Bizarre Use of Law

When the California Legislature enacted an “anti-pimp” law in 1982, it was trying to combat prostitution, not film making. Nonetheless, overzealous state prosecutors in Los Angeles used the law against Harold Freeman, a producer of sexually explicit films, whom they charged with paying actresses to engage in sexual acts before the cameras. By a 2-1 vote an appellate court recently upheld this bizarre use of the law.

“(A) criminal act is not protected under the First Amendment merely because it occurs within the context of a motion-picture production,” Justice Robert Kingsley wrote for the 2nd District Court of Appeal, upholding Freeman’s conviction. Kingsley apparently can’t tell the difference between hiring a prostitute for sexual gratification and hiring an actress to make a movie. He and Justice John Arguelles, who concurred in the decision, are apparently unaware that both state and federal courts have recognized that the First Amendment gives wide latitude to film makers and others to express ideas of all kinds, even when the ideas and their expression are offensive to many.

In dissent, Justice Eugene McClosky correctly recognized the basic First Amendment value being violated in this case. “It is not our right to interpret a criminal statute broadly to aid a finding of guilt, especially where to do so invades a First Amendment protection,” he wrote. He noted that in 1970 the California Supreme Court said, “Acts which are unlawful in a different context, circumstance or place may be depicted or incorporated in a stage or screen presentation and come within the protection of the First Amendment, losing that protection only if found to be obscene.”

We have no particular brief for Freeman’s hardcore films, but the danger in upholding his conviction is the effect that it will have on other film makers, who will think twice or thrice about making movies that are less sexually explicit but might nonetheless get them into trouble.

As a society, the United States is committed to encouraging and protecting the free expression of ideas of all kinds, including sexual ideas. Kingsley and Arguelles need to go back and read those words in the First Amendment: “Congress shall make no law abridging . . . the freedom of speech.”