Adult filmmakers in California sometimes take for granted their right to practice their craft. But the courts’ stamp of non-disapproval on the enterprise has only existed since 1987, when the state Supreme Court ruled in People v. Freeman that paying someone to perform sexually explicit acts on film or videotape was not pandering, and that the performance itself was not prostitution.
But not all states have been so rational, and earlier this year, director Isaac Sandlin found himself the victim of a sting operation mounted by the St. Louis, Missouri police department. As a result, Sandlin will go to trial on September 28 — and will be a free man, his attorney is predicting, within three days thereafter.
“The specific thing that he’s being charged with, promoting prostitution, when applied to what he is actually doing, is overbroad and therefore unconstitutional because it invades constitutionally-protected activities, invades constitutionally protected freedom of speech,” explained Sandlin’s attorney, Robert Herman, of the firm of Schwartz, Herman & Davidson.
“Basically, they sent an undercover officer to reply to an advertisement for actors and actresses for adult video films, and in response to that, he told them that they would have to bring in some pictures. And he gave them potential scripts that he might want to make, told them that the pay would be commensurate with the different kinds of scripts. And as a result of the scripts and the offer of payment for participating in the scripts, they are charging him with promoting prostitution.
“Primarily, we’re dealing with the Freeman decision, the California case that essentially gave rise to the adult video industry,” Herman continued. “Now, Freeman has been tested in some other states and hasn’t been as successful, and one of the things we’re going to be doing here is testing the application of Freeman to the law here.”
It’s not as though Sandlin planned to distribute the features himself. Sandlin’s business was to solicit scripts from third parties, who would pay him to hire actors to perform said scripts, which Sandlin would shoot on videotape. The resulting product would be owned by the person commissioning the project. That person was free to do what he wanted with the tape: use it for his own gratification, mass-distribute it, or take any other legal action the owner wanted to take.
“I don’t know what the best way to defend these things is, and a lot is going to depend on where the prosecutor comes from,” Herman assessed. “There are a lot of factual defenses that I can’t discuss now, but there is a bigger, overriding element. There’s nobody saying that these films were obscene — there were no films made! — so if you prosecute people for scripts that describe sex being had, it would apply to most of the contemporary movies out there.”
But Herman, a member of the First Amendment Lawyers Association, is optimistic for a number of reasons.
“The judge in the case has already said, ‘Yeah, it seems a bit overbroad to me, but we’re going to try this anyway,’” Herman said. “There’s a case in the Eighth Circuit, in which a Freeman analysis won, applied to a lap-dance bar. They were trying to apply a prostitution ordinance to that. The court said, if you do that, if you apply any touching as being a violation of the prostitution ordinance, it said — and I love this quote — ‘Any time a male ballet dancer lifts a female ballerina for money, that would violate the ordinance.’ So they threw out the ordinance.”
Herman made that same argument to the judge in his case.
Though fairly new to defending people accused of sex-related crimes, Herman has a good grounding in defending political speech — he represented a local Ku Klux Klan chapter that wanted to “adopt-a-highway” for the state’s highway clean-up program — and he’s already won an obscenity case for a local bookstore.
“I tried a pornography case last year in St. Charles County, which is the local home of the Moral Majority,” Herman recounted. “But there’s often a difference between the attitude of the people who get themselves elected prosecutors, and the community. This was an attack on two mom-and-pop adult video stores, and the cops went in and took the worst films they could possibly find, the least representative films.
“One was a pretty extreme bondage and discipline film. There was no penetration [in it], but there was nudity and touching, and some of the flagellation was to genitals. There were close-ups of some other rather gruesome things. In one scene, they sewed somebody’s lips shut. It was very unpleasant. And there was another film called Linda’s Anal Gangbang, which featured penetration multiple times by multiple people in about every position you could imagine.
“The prosecutor, bless her little heart, brought in 52 jurors in the panel,” Herman continued, “and she made every one of them stand up and she asked them, ‘Have you ever watched a pornography film? When’s the last time you watched one?’ And, ‘Did you rent it or buy it?’ Bless her little heart. I would never in a million years have embarrassed people like she did. But out of 52 in a very conservative community, 48 admitted to it. Now, they had different ideas of what pornography was, ranging from the Spice Channel to hardcore, and it was age-variant, but it’s not a big deal.
“Interestingly enough, if I had defended this case by the standard wisdom, which is, you call in your experts and your experts tell the jury that this has scientific and medical value, helps people discuss their problems, brings problems and feelings to the surface and is used as therapy, blah-blah-blah, that’s the standard approach. That wouldn’t have worked.
“What I did was make fun of it, and that worked. I said, in closing statement, ‘Ladies and gentlemen, you’ve all watched these films with me in court. We spent four hours watching the movies,’ and I said, ‘You know, the only thing I could think of when the films were done was... how’d they get that shot? Where did they put the camera to get that shot? I’ve never seen anything like that.’ And they all laughed, and the minute they laughed, I knew I had them.
“You have to make light of these people; they’re taking themselves way too seriously, and actually, this was motivated by the Religious Right element of the local county. There’s a Moral Majority chapter — there’s people that wear these pins; I don’t know just what they call themselves.
“There’s a guy named Matt Thornhill who is running for prosecuting attorney out there; I debated him on a TV show not long ago, and he brought his wife; they were shocked, shocked that such things were occurring,” Herman related in his best Claude Rains imitation.
Of course, Herman recognizes that any jury trial is uncertain.
“I told Sandlin not to expect great things; juries are black boxes and you never really know, but we’ll fight it to the end,” Herman affirmed. “I’m here; I’m ready. Bring it on.”
