The Sunshine State: A Ray of Hope for Adult Content Producers

March 19, 2012

Mandatory Condom Law Spurs Potential Exodus from L.A. Area

In late January, 2012, the city of Los Angles passed a landmark law requiring all adult content producers to mandate the use of condoms by performers as a condition for obtaining a filming permit.  This first-of-its-kind, mandatory condom law sent shock waves through the adult industry, and represented a huge victory for the AIDS Healthcare Foundation (“AHF”), which pushed for passage of the law by gathering a sufficient number of signatures to force the City to hold a special election on the issue.^[1]  Instead of spending four million dollars on a special election, the City Council decided to pass the law on its own.^[2]  

This concern may not be limited to the City of Los Angeles much longer.  The AHF has already launched a similar petition drive, attempting to mandate condom use throughout Los Angeles County as a whole, in the hopes of getting the issue on the ballot for the November, 2012 general election.^[3]  It is certainly possible that L.A. County could react the same way as the City, and simply pass the condom measure on its own without putting the issue to the electorate; effectively disregarding constituent input in its entirety.

Reacting to the rumors that the adult industry will move its operations elsewhere, the neighboring Simi Valley City Council reportedly plans to follow suit with its own mandatory condom ordinance.   “We are not going to accept the pornographic purveyors from Los Angeles County,” Simi Valley Mayor, Bob Huber said when asked to comment on the issue.[4]  With the ordinance expected to be introduced in the very near future, Simi’s City Council is currently considering a slightly modified version of the L.A. measure.[5]  Under the potential Simi Valley law, content producers would be required to present proof of on-set health care professionals monitoring condom usage, as a prerequisite to receiving a permit to film within the city’s limits.[6]  As an additional precaution, the content producer would have a specific time period after completion of each project to submit an unedited copy of the content to the Simi Valley Police Department for confirmation of compliance.[7]

Content Producers Consider Their Alternatives

Although the adult industry has been historically centered in the Los Angeles area, the recent, precedent-setting legislation has adult content producers considering a mass exodus to friendlier jurisdictions – even some outside of California entirely.[8]  Steven Hirsch, founder of Vivid Entertainment Group, stated that his company would simply move out of the city or the state and film elsewhere, as a likely alternative to complying with the mandatory condom law.[9]  Regardless of whether using condoms during erotic video production is a good idea or not, consumers seemingly prefer ‘bareback’ or condom-free content.[10]   Many adult performers also view condom usage as a personal choice that they should be allowed to make as opposed to something that should be mandated by the government.[11]  As far as the risk of disease, the current industry standard is for performers to be tested for STD’s at least every thirty days while they are working.[12]  One adult film star observed that people are more likely to catch a STD from someone outside of the adult industry, given the frequency of STD testing for adult performers.[13]  Thus, condom-free films will likely be made somewhere – even if prohibited in the Los Angeles area.

Since the adult industry generates an annual revenue stream of eight billion dollars, and 90% of U.S. adult films are currently produced in Los Angeles, the stakes are high.  Local and state authorities stand to lose substantial tax revenue should the industry depart from California.  However, since it appears that such departure is imminent, production companies are considering their options.  Naturally, areas like Nevada or Arizona are under consideration, given their close proximity to California.[14]  However, upon getting wind of a possible migration to Arizona, state officials pushed back, and warned that adult content production may be deemed prostitution under state law.[15]  Therefore, the state of Florida stands to provide a viable opportunity for those considering a move to greener pastures.

The Climate in Florida

While Florida politics and law enforcement priorities are inconsistent throughout the state, certain areas of Central and South Florida have been a long-time home to some of the industry’s largest content producers.  Several years ago, a Jacksonville newspaper reported on the growing popularity of both professional and amateur adult content production in the state of Florida.[16]  The story, which identified several local content producers, noted that Girls Gone Wild regularly visits Florida to capture the company’s world-renowned exhibitionist material.[17]  Another company referenced in the article, JacksVids, allowed customers to pay to have sex with a performer on tape, after which the video was uploaded to a site and sold to members.[18]  With local law enforcement recognizing that the monetary exchange was for filming, not sex, Sheriff’s deputies had difficulty identifying any actionable criminal conduct.  “[T]here are so many constitutional protections, it’s extremely difficult to prosecute.  It really has to go way outside society’s norms to come up to the level of criminal,” observed a sheriff’s deputy from the Jacksonville – notably one of the State’s most conservative areas.[19]

In other locations, such as South Florida, adult content producers have been prospering for years.  For over a decade, Miami-Dade County has been home to some of the largest adult content producers and website operators in the business.  Also notable is that the high profile (and still controversial) .XXX registry operator, ICM Registry, Inc., calls Palm Beach Gardens, Florida, home.[20]

Again, law enforcement in South Florida appears to have come to terms with the existence and legality of the adult industry.  In fall of 2004, a local television network conducted an undercover “investigation” exploring the vast world of Miami’s adult content production, probing the amateur “gonzo” niche in particular.  When asked to comment for the story, local police conceded that despite the raw, “uncut” nature of gonzo erotica, its production was not illegal.[21]  Perhaps the indifference to adult content production can also be partially attributed to Florida’s acceptance of nudity in general, exemplified by the State’s numerous clothing-optional beaches, resorts, and festivals.[22]  Offering a safe-haven for those looking to shirk traditional inhibitions, one Florida county has even been dubbed the “North American Capital of Nudism.”[23]  Florida is quickly becoming a seminal location for the naturist movement; a reputation that could easily benefit adult content producers.[24] This, along with society’s increasing acceptance of the adult industry and erotica in general, bode well for content producers or webmasters considering Florida as a base of operations.

That’s not to say that all areas of the state are completely safe for adult industry producers to set up shop.  Polk County, Florida for example, is notorious for its routine prosecution of obscenity cases against anyone involved with producing erotic content within its jurisdiction.[25]  Polk County Sheriff, Grady Judd, has even gone to the lengths of extraditing an individual from Colorado to face obscenity charges based on sending a book relating to pedophilia to the Polk County jurisdiction.[26]  The author has defended at least a dozen obscenity cases emanating from Polk County.  Florida’s panhandle, spanning from Pensacola to Tallahassee, has also developed a reputation as a risky area in terms of obscenity prosecutions.  In 2006, Pensacola-based webmaster, Clinton McCowen a/k/a “Ray Guhn,” was prosecuted by the State Attorney in that jurisdiction based on his alleged involvement with producing adult website material focusing on group sex themes.[27]  However, the obscenity, racketeering, and prostitution charges premised on content production were ultimately dismissed, in exchange for the defendant’s guilty plea to financial crimes.[28]  Aside from select areas of the State like the Panhandle and Polk County, Florida has generally adopted a ‘live and let live’ approach to the adult entertainment industry in recent times.

Historical Basis for Locating in California

Historically, most adult film production has occurred in California as a result of a ruling from the Supreme Court of California holding that prostitution and “pandering” laws do not apply to the production of adult content in that state.[29]  This Court decision gave adult content producers a sufficient level of comfort to enable production of erotic material without fear of arrest for prostitution or “pandering” based on claims that they were paying individuals to engage in sexual activity.[30]  Since then, only one other state has been the beneficiary of a similar decision: In 2008, the Supreme Court of New Hampshire likewise held that its state prostitution statute cannot be legally applied to criminalize adult content production, under New Hampshire’s state constitution.[31]  While adult content producers did not go flocking to New Hampshire after that decision was rendered, the ruling might have given pause to prosecutors in other states who might have otherwise considered bringing charges against adult content producers under similar prostitution laws.  No prosecutor wants to be responsible for bringing the landmark case resulting in their state becoming the latest safe-haven for adult content production.  A state attorney who lets that happen on his (or her) watch can kiss any political or judicial aspirations “goodbye.”  Therefore, a quiet detent has existed in the other forty-eight states (including Florida), where the applicability of prostitution laws to adult content production remains unsettled, with law enforcement generally looking the other way when it comes to such issues.

Why Florida?

Turning back to Florida, the adult industry has continued to grow and thrive in the Sunshine State since the early days of the Internet.  Some of the reasons for this include the generally progressive community standards in South Florida, the warm climate, and the lack of any state income tax.  The cosmopolitan makeup of Miami-Dade County, along with a strong presence from the fashion and modeling industries,[32] results in ready access to many beautiful young women and men who are often willing to perform in erotic-themed material.  Also an international travel hub, Miami fosters easy access to a constant supply of fresh faces seeking fame and fortune in the entertainment industry.  Florida’s steady climb to the top of the list of locations piquing content producers interests has not gone unnoticed, as evidenced by the decision to hold the 2012 XBIZ Summit in Miami, Florida.[33]

Few, if any, obscenity cases have been initiated in South Florida since the embarrassing loss suffered by former Fort Lauderdale Sheriff, Nick Navarro, who attempted to prosecute the producers of 2 Live Crew’s  rap album, As Nasty As They Wanna Be, for violation of Florida’s obscenity laws.[34]  In that case, the Eleventh Circuit Court of Appeal ruled that the record, while sexually explicit, was not obscene as a matter of law.[35]  Other law enforcement officials in the area lost their stomach for obscenity cases after that high profile failure.

Similar censorship efforts, dating back almost twenty years, have failed from Tallahassee down to Daytona Beach, Florida as well. The unanimous acquittal of a video store owner brought up on obscenity charges in Tallahassee caused the prosecutor in that case to predict that the area would become a “porn haven.”[36]  In Marion County, Florida, prosecutors failed in their attempts to prosecute three separate store clerks from a local video store, based on their involvement with the sale or rental of allegedly obscene material.[37]  Several years later, in the same jurisdiction, jurors acquitted a man for wearing an allegedly “obscene” T-shirt depicting a nun masturbating.[38]  Another controversial state attorney was branded as having “skewed priorities” after losing several obscenity cases in both civil and criminal courts against local video store owners offering sexually explicit material.[39]  This failed “porn crusade” ultimately cost the “grandstanding” State Attorney his job, after he was voted out of office largely in reaction to concerns over censorship by the electorate.[40]

While it is notable that Paul Little, a/k/a Max Hardcore, was prosecuted in Tampa, and convicted of federal obscenity violations (due to the presence of hosting servers containing the subject material in that jurisdiction), few other federal obscenity cases have been brought in Florida in the last two decades.[41]  Further, despite Little’s prosecution, the adult entertainment industry continues to thrive in the Tampa area, which reportedly has the most adult businesses of any metropolitan area in the country, and has been dubbed the “lap dance capital of the world.”[42]  Even in Orlando, Florida – home of Disney World – adult entertainment companies have prospered and generally been left alone by law enforcement after some unsuccessful attempts to censor adult video stores in the early Nineties.[43]  Perceived as the geographic happy-medium between South Florida’s overt sexual freedom and the Panhandle’s more conservative approach towards erotic material, Orlando adult content producers capitalize on what one local newspaper referred to as, “[…] the Florida lifestyle: sunny skies, sandy beaches, palm trees and tan girls in skimpy bikinis.”[44]

Aside from a friendlier local political climate, Florida tends to afford content producers more bang for their buck – no pun intended – thanks to significantly lower operating costs compared to their West Coast brethren.[45]  “Our original plan was to go to California, but it would have been costly so we decided to set up shop here in Florida,” observed Leon Bryan of the Orlando-based Demon Seed Pictures.[46]  Industry veteran and publisher of AVN Online, M.J. McMahon, accredited Florida’s “large and willing talent base” for its ongoing adult content production success.[47]

Moreover, Florida authorities have not targeted adult content producers for workplace safety violations as has CAL-OSHA in California.[48]  The well-publicized raids on West Coast adult content studios have threatened the “independent contractor” relationship that most producers have tried to maintain with their performers.[49]  There is no “FL-OSHA.”[50]  That said, in June of 2010, the Florida Department of Health initiated an investigation requested (not surprisingly) by the AIDS Healthcare Foundation, regarding the failure to use condoms in Florida’s “fast growing” adult film industry.[51]  The investigation was based on broad health regulations prohibiting the creation of a “sanitary nuisance.”[52]  Four Florida production companies were named in the investigation; however, the scrutiny appears to have run its course as no further action has been taken since the announcement of the investigation over a year and a half ago, and no new investigations have commenced.  Notably, no city or county in Florida has considered any ordinance requiring mandatory condom use by adult content producers.

Conclusion

While Florida may not have the established case law protecting content producers from prostitution charges, like California or New Hampshire, it certainly offers many other attractions:  Beautiful models, dynamic cities, temperate climate and perhaps most importantly – no mandatory condom laws.  As the Los Angeles area becomes less and less friendly to the adult entertainment industry, production companies are considering their alternatives.  Some may discover a bright new future in the Sunshine State.

All statements made in the above article involve general information or matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. Lawrence Walters can be reached at [email protected] or www.FirstAmendment.com.