Is Filming Porn Illegal in Florida?

What's the difference between porn — where people hump for money — and prostitution, where one person pays another for sexual services?

"Consuming porn is too much an accepted part of our culture for any real threat against it to survive."

Nothing, says Michael Weinstein. As president and founder of the AIDS Healthcare Foundation, Weinstein has been a pain in the bare ass of the porn industry. His organization made headlines last year for spearheading a law requiring condoms on porn sets in Los Angeles County. But in recent months, Weinstein has taken to claiming porn is not only unsafe but also illegal. According to him, hundreds of South Florida porn stars are committing a crime with every pelvic thrust.

"Both California and New Hampshire have supreme court rulings calling [porn production] free speech," Weinstein says. "Even though there is a big business elsewhere in the U.S. — particularly in South Florida — technically it is considered prostitution. It's illegal."

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It's a question with serious implications for South Florida, where the adult film industry has been booming in the wake of L.A.'s condom law. Companies such as Bang Bros and Reality Kings are giants of the nudie world now. But last month, the Sun-Sentinel quoted Weinstein as if his statements were fact. A few days later, the newspaper repeated his assertion in an editorial. However, the truth about the legality of porn in Florida is much murkier.

"Weinstein has been running around screaming that it's not legal, but that's ridiculous," says Diane Duke, chief executive officer for the Free Speech Coalition, a nonprofit representing the adult film industry. "While New Hampshire and California have been proactive in [protecting porn production], it doesn't mean it's illegal in the rest of the states."

Legal scholars tend to agree, but the issue is sloppier than either side admits.

"By holding that at least some pornography is protected by the First Amendment, the Supreme Court has implicitly declared that the performance of sex for money that occurs in pornography is different from the performance of sex for money in prostitution," says University of Miami law professor Mary Anne Franks. "It hasn't addressed this distinction explicitly, however, and the few lower courts that have done so resort to some fairly convoluted reasoning to reach their conclusions. The distinction seemingly turns on the fact that prostitution is a bilateral exchange of sex for money, making the physical act of sex the 'product,' while in the production of pornography, the 'product' is the recorded act of sex."

So a streetwalker humping some horny bastard in a Biscayne Boulevard motel is illegal, but add a camera, cut them both a check, and slap the sloppiness on the internet and it's A-OK?

"Basically, the distinction is arbitrary and doesn't hold up to legal analysis," Franks admits. "But there doesn't seem to be any political or legal will to acknowledge that. My theory is that this is the case because the porn industry is so lucrative and so powerful."

Yet there's another reason why its precarious legal status isn't really a big deal: Porn is way too popular, Franks says.

"Consuming porn is too much an accepted part of our culture for any real threat against it to survive."

 
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