The Supreme Court in the state where "Live Free or Die" adorns the license plates has answered the question "why can't producers of adult films be charged with prostitution?" The short answer -- because it would violate the First Amendment (or at least the New Hampshire Constitution's equivalent thereof). See New Hampshire v. Theriault, No. 2007-601 (N.H. Sup. Ct. Dec. 4, 2008). 

Robert Theriault was a court security officer in Franklin District Court. When a couple came to the court to pay some fines, Theriault asked them if they "needed employment." He told them that he couldn't talk about it at work, but met up with them "in a parking lot behind a bank." (Op. at 2). When he met them, he informed them that the job was acting in (as the Court delicately described it) "f... flicks." (Op. at 2). The young couple told the story to one of their moms, who reported the incident to the police, who then charged Mr. Theriault with violating the state prostitution statute, RSA 645:2. Apparently, in another case, Mr. Theriault also approached another couple, but didn't offer to videotape them (and his conviction in that case stands). Theriault moved to dismiss the charges on the grounds that the New Hampshire prostitution statute is "overbroad as applied to the constitutionally protected activity of making a sexually explicit videotape." (Op. at 2). The trial court didn't buy it, but the New Hampshire Supreme Court did. RSA 645:2(I)(f) provides:

A person is guilty of a misdemeanor if the person [p]ays, agrees to pay, or offers to pay another person to engage in sexual contact as defined in RSA 632-A:1, IV or sexual penetration as defined in RSA 632-A:1, V, with the payor or with another person.

Based on the plain language of the statute, Mr. Theriault seems to have violated the law. However, when the Court applied the facts to the law, and threw the New Hampshire Constitution into the mix, the result was consistent with California v. Freeman, 46 Cal. 3d 419 (1988). (Case discussed in depth here: Why is Prostitution Illegal, but Pornography is Not?) The court found that the facts of the case were rather simple:

The facts boil down to the defendant offering to remunerate the couple to have sexual intercourse while being videotaped. There was no evidence or allegation that the defendant solicited this activity for the purpose of sexual arousal or gratification as opposed to making a video. The State did not charge the defendant under the “sexual contact” portion of the statute and therefore there was no finding by the trial court that the defendant acted for the purpose of sexual arousal or gratification. Thus, if the statute constitutionally prohibits the defendant’s conduct, a request to pay two individuals to make a sexually explicit video would be unprotected under the free speech guarantees of the State Constitution. (Op. at 4)

In analyzing the case, the Court ran over some well-traveled ground. The Court noted that under Burstyn v. Wilson, 343 U.S. 495, 502 (1952) films are protected by the First Amendment. With respect to adult films, Miller v. California, 413 U.S. 15 (1973) and Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) establish that pornography can only be banned if it is deemed to be legally obscene. The Court also recognized that merely filming a crime did not transform the act into something worthy of Constitutional protection, citing People v. Fixler, 128 Cal. Rptr. 363 (Cal. Ct. App. 1976).

While First Amendment considerations may protect the dissemination of printed or photographic material regardless of the manner in which the material was originally obtained, where a crime is committed in obtaining the material, the protection afforded its dissemination would not be a shield against prosecution for the crime committed in obtaining it. The fact that a motion picture of an actual murder, rape or robbery in progress may be exhibited as a news film or a full length movie without violating the law does not mean that one could with impunity hire another to commit such a crime simply because the primary motivation was to capture the crime on film. Op. at 6 citing Fixler at 365-66)

Finally, as anyone who has studied this area of law would predict, the Court turned to the seminal case of California v. Freeman. In that case, the California Supreme Court held that Mr. Freeman was not guilty of "pandering," because a) the California statute under which he was charged required that the pandering be "for sexual gratification," and b) that the First Amendment prohibited such prosecutions. Ultimately, it was the first prong of that case that led to the case being denied a petition to be heard before the U.S. Supreme Court, so we still do not know how the Supremes might have ruled on the First Amendment issue.

Accordingly, while Calif. v. Freeman stands for the proposition that the First Amendment requires that producers of adult movies should be allowed to pay their actors, it has no binding precedential effect outside of California. Until now, no other appellate court has confronted this issue. With that as a backdrop, the New Hampshire Supreme Court invoked the Free Speech provision in Live Free Or Die State's Constitution, (which is somewhat more broad than the First Amendment).

To uphold the conviction in the instant case, where the only facts adduced at trial were that the defendant offered to pay two people to have sexual intercourse while being videotaped, would infringe upon an area of speech protected by the State Constitution. See Ashcroft, 535 U.S. at 240 (pornography protected where not obscene). We emphasize that our holding is dictated by the specific charges and unique facts of this case. The defendant was charged with offering to pay two individuals to engage in sexual penetration while he videotaped them. We note that the State did not charge the defendant with offering to pay them to engage in sexual contact, which would have required the State to prove that he acted for “the purpose of sexual arousal or gratification” and thus engaged in conduct that was not constitutionally protected. Thus, our holding today will not prevent the State from continuing to prosecute prostitution, even when the acts are videotaped. (Op. at 7)

Given that Mr. Theriault approached another couple without offering to videotape them, he may very well have been using the video excuse as a pretext. Nevertheless, the New Hampshire Supreme Court got this one right. The Court affirmed the seemingly obvious principle that one can not make an adult film without paying the actors. Accordingly, banning sex-for-money in all contexts would ban an entire area of constitutionally protected speech. Nevertheless, the Court maintained that the presence of a video camera does not magically transform a crime into protected activity -- there must be something more. The only evidence in the record of this case was that the defendant offered money to someone "to make pornography." (Op. at 7), thus making this case a very clear-cut question of whether paying someone to be in an adult film is, indeed, prostitution. While it might technically fit the statute, employing it as such violates constitutional principles of free speech, and thus the prostitution statute is overbroad if used in this manner. Interestingly enough, the Court wisely limited its ruling to Article 22 of the N.H. Constitution, thus ensuring that the current Supreme Court would have no grounds upon which to overturn the decision.

Hat tip to Polymorphous Perversity.