MIAMI—Alternative weekly Miami New Times posted an article to its website today that looks at the question of whether the production of pornography in Florida is legal or not. The state has been a popular location for adult producers for years, but its status as one of the nation’s few hubs of porn production has taken on more scrutiny of late as the industry has come under increasing pressure in its traditional home turf of Los Angeles’ San Fernando Valley over the issue of mandatory condom use.
As some may be aware, the main instigator of California’s push for mandatory condoms is AIDS Healthcare Foundation, whose president, Michael Weinstein is the first person quoted in the New Times article.
"Both California and New Hampshire have Supreme Court rulings calling [porn production] free speech," he said. “Even though there is a big business elsewhere in the U.S.—particularly in South Florida—technically it is considered prostitution. It's illegal."
Weinstein also has stated publicly many times that he has nothing against porn or the porn industry and only wants to promote performer safety, but his campaign to gain national control over the industry’s on-set practices seems to have pushed him to engage ever more aggressive strategies.
On the flip side of the argument, the Free Speech Coalition’s Diane Duke is mentioned next by New Times. "Weinstein has been running around screaming that it's not legal, but that's ridiculous," she is quoted as saying. "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."
The article takes the general position that “legal scholars tend to agree” with Duke, adding, “but the issue is sloppier than either side admits.”
One legal scholar, University of Miami law professor Mary Anne Franks, is then cited by the magazine.
"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 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,” she adds, “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."
When pushed on that point, she concedes, “"Basically, the distinction is arbitrary and doesn't hold up to legal analysis. 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."
And popular: "Consuming porn,” she adds, “is too much an accepted part of our culture for any real threat against it to survive."
From wherever you are in the country, you should be able to see the steam bellowing from Weinstein’s ears in reaction to one Florida law professor’s evaluation of the situation. Not that it will deter him...