Pimp Law’s Use Against Producer to Be Tested

By his own account, Harold Freeman has produced more than 100 full-length sex movies that have made him a prominent figure in Los Angeles’ $500-million-a-year adult film industry.

But Freeman faces a term in state prison as a convicted panderer for hiring actresses for up to $800 a day to perform sex acts in a film that he conceded at his trial was “filth.”

Now, the California Supreme Court has agreed to review the precedent-setting case to determine whether a tough new state law cracking down on pimping and prostitution can be used against producers of sexually explicit movies.

Only for Pimps, Lawyers Argue

Lawyers for the 50-year-old film maker say that pandering laws should be reserved for ordinary street pimps and that Freeman’s prosecution violates the constitutional guarantees of free expression. If Freeman can be sent to prison, so can the producers of a movie like “Midnight Cowboy” or even a sex education film, they contend.

“The authorities have suddenly come alive with this new pandering statute as a way of solving the prostitution problem,” one of the attorneys, Dennis A. Fischer of Santa Monica, said Friday. “In this situation, it’s overkill.”

But state and local prosecutors argue that the case has nothing to do with censorship or free expression and that they should be able to use the 1982 statute in their effort to find effective tools to combat prostitution and the crime that surrounds it.

“The First Amendment does not even come into play in this case,” said state Deputy Atty. Gen. Lauren Dana. “It’s a crime to procure for the purpose of prostitution. And putting a movie camera on it doesn’t give it constitutional protection any more than it would if you filmed a robbery or a murder.”

The legislation was introduced by Senate President Pro Tem David A. Roberti (D-Los Angeles), whose district in Hollywood has been plagued by prostitution. The law requires judges to imprison people convicted of pandering for from three to six years.

1983 Film Involved

Los Angeles authorities invoked the law for the first time against a movie producer when Freeman was charged with pandering for hiring five women to perform sex acts in a 1983 movie called “Caught From Behind II.” Prosecutors said the women were effectively serving as prostitutes.

Freeman was convicted in 1985 by a jury in Van Nuys. But Superior Court Judge James A. Albracht refused to impose the three-year minimum prison term, finding that such a penalty would violate constitutional prohibitions against cruel and unusual punishment. Instead, Freeman was sentenced to 90 days in jail and a $10,000 fine.

The judge concluded that the law was really aimed at “actual pimps--the guys in long fur coats, the broad-brimmed floppy hats, the purple cars, who maintain a stable of prostitutes.”

“It wasn’t the intent of the Legislature to put people like Mr. Freeman in prison when this law was passed,” Albracht said.

The questions raised by the case caused sharp division when they reached the state Court of Appeal in Los Angeles.

In January, an appellate panel ruled 2 to 1 that movie makers like Freeman could be prosecuted under the pandering law for hiring actors or actresses to perform sex acts on film.

Appellate Justices Robert Kingsley and John A. Arguelles voted to uphold Freeman’s conviction, concluding that while the distribution of a movie or book is protected by the First Amendment, there is no such protection for a criminal act such as procurement for prostitution.

Dissent Opinion

In dissent, Appellate Justice Eugene McClosky said Freeman is entitled to constitutional protection in the absence of any finding that the film itself is legally obscene. The Legislature did not intend the law to be used to effectively prevent the distribution of a film depicting sex acts between consenting adults, he said.

Then in a second decision in February, the same court voted 2 to 1 to uphold the trial judge’s ruling that Freeman should not be sent to prison for the minimum three-year term. This time Kingsley and McClosky voted in the majority, with Arguelles in dissent.

Arguelles, who was later named to the state Supreme Court by Gov. George Deukmejian, argued that the majority had created an unjustified distinction between pandering by film producers and pandering by street pimps.

Any concern over the “chilling effect” of prison sentences on creative expression can only come from “the mercenary voices of those who profit by the kind of exploitation involved here,” Arguelles wrote.

Actors and actresses have long simulated sex, just as they have simulated violence or death, he noted. “If people performing sex acts before cameras are truly ‘actors’ and ‘actresses,’ then let them act,” he wrote.

(Arguelles did not participate in the state Supreme Court’s decision Thursday to review the Freeman case. Jurists elevated to higher courts routinely disqualify themselves from cases in which they have previously participated. A judge from a lower court will likely be appointed to sit with the justices when the high court hears oral argument in the case at a later date.)

Both sides in the case brought appeals to the state Supreme Court, with Freeman’s attorneys challenging use of the pandering law to prosecute the film maker and Los Angeles prosecutors contesting the lower court refusal to sentence Freeman to prison.

‘Unquestionably Tasteless’

The producer’s lawyers, Fischer and Stuart Goldfarb of Beverly Hills, stressed that while the film was “unquestionably tasteless,” it had not been found to be legally obscene.

The use of criminal pandering statutes and prison terms in such cases would “all but ban” the production of non-obscene sexually explicit movies, the attorneys warned.

The severity of the prison terms to be imposed under the law was an indication in itself that the Legislature did not intend that the measure was aimed at movie producers, the attorneys said.

In their petition to the court, Los Angeles County Dist. Atty. Ira Reiner and Deputy Dist. Atty. Dirk L. Hudson urged the court to uphold both the prosecution and prison sentence for Freeman to “put teeth” in the effort to combat prostitution.

The prosecutors observed that Freeman had accumulated assets of more than $1 million and had testified during his trial that his film was “filth.” (“Smut is what the courts call it,” Freeman added.)

Freeman, they noted, operated the camera for close-up filming of the acts being performed, frequently shouting at the actors and actresses when they were “not sufficiently raunchy.”

The prosecutors also expressed concern over public health matters--such as the spread of AIDS--inherent in using actors and actresses for multiple sex acts and over the exploitation of such people hoping for legitimate acting careers.