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stars, sex and nudity buzz : 10/22/2012

DiCaprio Intimately Injured at Bedroom Scene Shooting

Leonardo DiCaprio was slightly injured at the shooting area of Martin Scorsese’s The Wolf Of Wall Street.

The incident occurred when shooting a bedroom scene with Leonardo and three girls.

The director asked the stars to feel absolutely relaxed. And DiCaprio did! He, naked as a newborn, came to his female partners, sat on a black marble plate and... jumped at once with screams.

It turned out that the floodlights heated the plate and Leonardo DiCaprio burned himself a bit.

However, a nurse was quick to help and rubbed some aloe cream in his burns.

After a short break, DiCaprio finished the scene.

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MYSTIKAL @ THE OFFICE NIGHT CLUB
from stoplayin films



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James Franco is reportedly dating Ashley Benson.
© Cover Media James FrancoThe American actor and Pretty Little Liars star Ashley met while making the film Spring Breakers. The couple have been seen together in New York City on more than one occasion,

"They have been seeing each other for a little over a month," a source revealed to the New York Post. "But things are going well."

The 34-year-old Golden Globe Award winner and Ashley, 22, were spotted enjoying a romantic stroll around downtown New York and in Washington Square Park earlier this month. Last week, the couple were also seen walking hand-in-hand at the Los Angeles Haunted Hayride.

In their movie Spring Breakers, Ashley, Vanessa Hudgens, Selena Gomez and Rachel Korine star as a quartet of best friends who have known each other since high school. The girls decide to go on an adventure for spring break and hit Florida to celebrate. During their trip, the pals get involved in a robbery to finance their escapade and wind up in jail. The foursome are bailed out by James' character Alien, a drug-dealer and gunrunner who seduces the girls into his world.

Ashley has spoken previously about her role is the risqué movie. The American actress thought the role was a way for her to shed her teen image.

"For Selena, Vanessa, and me, our audience is all in their teens or younger, so they're not even going to be able to see this when it comes out - it's not appropriate," she said.

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Revenge’s Emily VanCamp Reveals New “Ring” in Sexy GQ Photoshoot! (VIDEO)

 
Revenge is sweet, and no one knows that better than actress Emily VanCamp.

In her new GQ photo shoot, Em enjoys a variety of sweet treats — including three of our favorites: Ring Pops, giant rainbow lollipops, and candy necklaces — and channels her inner Revenger with two guns. Admittedly, if her TV counterpart started using neon pink and orange water guns, the show would take an interesting turn, but we’re sure Nolan Ross would approve!

First and foremost, Emily looks downright sexy in this video. Set to Future Trends’ dance hit, “How Can I Be,” she reveals a multitude of bras in unbuttoned or cleavage-baring outfits, showing off her playful and seductive side in different poses.

There’s everything from bikes to bouquets in this video, but of course, Em is the star of “Revenge Camp.” And although It’s nearly impossible to pick a favorite moment from the photo shoot, we have to say that seeing Ems giggle and squirt a water gun as the video ends brightened our day.
(wow...the song is perfect. Sounds like something straight from the mid-80's British mini-invasion collection)

* I remembered Emily talked effortlessly about doing film nudity in an interview few years ago but never walk the talk. The Canadian is now on a successful but rather hackneyed show Revenge, dating her Brit co-star like every actress across the Atlantic seems to be doing these days (I'm telling you those accent makes 'em sound far more intelligent than they really are) and in showing her ample bosom albeit clothed. Pity the show wasn't on HBO or Starz. I bet Emily could been persuaded to strip if it's a sex scene with real-life beau just like it was for Stephen Moyer and Anna Pacquin on True Blood in first couple of seasons.

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GANDU Director Trips Out A Classic. Watch The TASHER DESH Trailer.
Indian indie maverick Q made a huge splash around the world with his recent feature Gandu - a film that has won acclaim around the world while being denied a release in its own country. But distribution troubles or no, Q has moved right on to his latest effort: An adaptation of classic stage play Tasher Desh.
Tasher Desh is one of Tagore's most famous dance operas, a unique genre he developed that was influenced by Western opera.

A Prince, tired of suffocating in his palace, goes in search of adventure. Accompanied by a far more conventional travelling companion, a Merchant, the mismatched pair get shipwrecked in the Land of Cards . Here the inhabitants are playing cards, well regulated and devoid of emotions. With the wild force of his personality, the Prince starts to effect change in the Cards and gradually their human qualities begin to emerge...
Scheduled to have its world premiere at the Rome International Film Festival, Twitch is proud to present the first trailer for Q's Tasher Desh. Check out this incredibly bold, vibrant and challenging bit of work below.

* another mind-bending effort from Q. Much less explicit but more nudity from a diverse female cast. I believe that's Tillotama Shome topless in the tin bathtub. 

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Indie All-Stars Round Out Cast for Angus MacLachlan’s ‘Goodbye to All That’ 
by Kate Erbland on October 8, 2012Goodbye to All That Casting
Schneider. Lynskey. Sedaris. Weston. Sold!

Variety reports that indie film MVPs Paul Schneider, Melanie Lynskey, Amy Sedaris, and Celia Weston have all joined the cast of Angus MacLachlan‘s feature debut, Goodbye to All That. Additionally, other newly-announced cast members include Heather Lawless, Heather Graham, Anna Camp, and Ashley Hinshaw. That’s one heck of a wonderful cast but, considering that MacLachlan’s feature screenwriting debut was the critically lauded Amy Adams career-launcher Junebug, it’s no surprise that so many great talents would want to hitch their wagons to MacLachlan’s star.

The film centers on “what happens to a man who’s unexpectedly divorced by his wife and forced to adapt to a new life, balancing the well-being of his daughter with his newly-complicated sex life.” While official casting notes on who is playing who have not yet been reported, it’s probably safe to say that Schneider will star in the central role (and the man knows his complicated sex, see: All the Real Girls). Perhaps Lynskey is set for the difficult role of unexpected ex-wife? Sounds wonderful. The film is set to start lensing in Winston-Salem, N.C. later this month.

Proper synopsis:
A 40 years old man - Otto Wall. An average guy (an athlete and web designer) married to Annie for 11 years - is hit by a ton of bricks: His wife's thrapist announces: "Your marriage is over.". He subsequently has encounters with a variety of women - all adults, all willing - and all consicious that no one is being taken advantage of. Finally he realizes that the most important female in his life is his eight year old daughter, Edie. The story is about what Otto learns he needs to do as a man. What he needs to do to feel whole and confident again. What he needs to pay attention to, what he needs to learn. And finally what he needs to do to balance his desires with the duties required of being a parent.
* It's possible the casting guys will be soon rendered redundant if the culture of recommendations takes root. Just imagine the writer/director Angus MacLachlan having trouble casting the right actor for a role that requires upper frontal segment. The character have sex with Paul Schneider and later seen topless. It's a minor part. But Heather Graham was there to save the day.
HG : I got the right girl for you, Mac. We worked together on a movie a year ago. Maybe you heard of it. Cherry?
AM : The one about porn industry?
HG : Yeah..and the one who played the lead is such a sweet girl. Name is Ashley. She is still raw but open minded and adapt in working a scene. I feel this part will be perfect for her.
AM : Is she okay with...you know...with scenes of sexual nature. Sometimes these girls get spooked...undressed in front of strangers and refuses to perform intimate scenes anymore.
HG : I don't think so. As long as it's tasteful and guy keeps his hands to himself. Let me give her a call. I'm sure she will like the script. Hmmm..wonder if she is still in Atlanta. I heard she was there shooting a horror movie.

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NIKA LUCKY HOLE I

More here

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Kate Gosselin TV hosting gig offer requires nudity
Reality TV Articles (October 21, 2012)
Pornography company Vivid Entertainment feels they have the ultimate Kate Gosselin TV hosting gig for the former “Kate Plus 8” star, although if she really wants the job, Gosselin will be required to get naked in front of prying TV cameras. That’s because Vivid has offered Kate Gosselin a hosting gig that would require the well-known reality TV celebrity be naked on camera.

While more than likely a publicity stunt, Vivid’s imaginative Kate Gosselin TV hosting gig, which according to TMZ is being called a “Naked Host” job by Vivid, would provide Kate with flexible work hours so that she can still attend to her motherly duties.

Earlier this week, Kate Gosselin was fired from her blogging job at CouponCabin over “recent events” that didn’t sit well with the company’s CEO Scott Kluth. While Kluth never bashed Gosselin, he did manage to explain (albeit briefly) while Gosselin was let go.

“A series of recent events have made it clear to me that Kate Gosselin and her contributions do not align with the authenticity which we set out to build almost a decade ago,” Kluth wrote in a revealing letter on CouponCabin.

“Ms. Gosselin is simply not a good fit with the wonderful team and culture at CouponCabin.”

Kate Gosselin’s Twitter page has been silent on this issue. It’s likely Kate won’t even dignify the job offer with a response. With that said, when Kate was fired by CouponCabin last week, she did tweet out that she was remaining “super busy” despite being unemployed.

* stranger things have happened....Kate certainly got the bod to flaunt it any way she wants to. 

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Naples Players dare to go bare in steamy French thriller
Original version of 'Dangerous Liaisons - 'Les Liaisons Dangereuses' - offers a look at boys and girls behaving very, very badly
By CHRIS SILK
'Les Liaisons Dangereuses' opens the season in the Tobye Studio on October 24 for The Naples Players, at the Sugden Community Theatre. Pictured with  Mark Vanagas, who plays Valmont, are (clockwise from left) Laura Needle, Kathleen Butler Gravatt, Sarah Dickerson and Victoria Diebler.
"Les Liaisons Dangereuses" opens the season in the Tobye Studio on October 24 for The Naples Players, at the Sugden Community Theatre. Pictured with Mark Vanagas, who plays Valmont, are (clockwise from left) Laura Needle, Kathleen Butler Gravatt, Sarah Dickerson and Victoria Diebler.

— Paul Graffy is determined that audiences not view the brief glimpses of breasts, buttocks and bare boys in his production of "Les Liaisons Dangereuses" as shocking.
"It is an edgy play," Graffy told the Daily News in the days before the show opened. His wide-ranging interview strayed from scenes of nudity in the play to how the behavior of the characters could be considered akin to today's modern cyber-bullying.
He even points to a line from Act I that echoes his point, uttered by Madame Rosemond: "The only thing that might surprise one is how little the world changes."

SEX, AND SCANDAL
Based on books of letters that describe scandalous sexual adventures of various French nobility, the show features the Marquise de Merteuil and Vicomte de Valmont warring against each other (and everyone else) through the use of seduction and sexual desire. Christopher Hampton's acclaimed stage play was adapted into a steamy film version, "Dangerous Liaisons." Glenn Close, John Malkovich and Michelle Pfeiffer lit up movie screens in 1988, winning three Academy Awards.

"The behavior is no different than today, just the context is different" Graffy emphasized. "These people liked to ruin lives for their own amusement."

Graffy wants his particular production to retain that "timeless" element. Even though "Les Liaisons Dangereuses" is set in pre-French Revolution Paris, he won't be using Louis XVI furniture and period costumes. This owes partly to the limited size of the Tobye Studio space and the logistics that would be required to create 18 scene changes across nine different locations - along with the gowns, corsets and wigs that go with them.

"This story works well to tell it very simply," Graffy said. "It is no place, but every place."
Kathleen Butler Gravatt plays scheming Marquise de Merteuil, while Mark Vanagas slips into the skin (sometimes nothing more) of the oily Vicomte de Valmont. Both amoral characters constantly raise the stakes in games that break the hearts, minds and spirits of everyone around them. Veteran Naples Players actors Victoria Diebler (Emilie), Carol Fenstermacher (Rosemond) and Laura Needle (Tourvel) join the cast, along with Joseph Lang (Danceny).

"They had too much [money] and had nothing better to do," Graffy said of the wealthy nobles at the center of the play.

HOW WILL AUDIENCES REACT?
The play features several sensuous, titillating and borderline shocking moments. In one scene, Valmont writes a letter to a would-be conquest on the back of a naked courtesan. In another, Valmont slips into the bedchamber of an under-aged girl.
Paul Graffy directs the Naples Players production of 'Les Liaisons Dangereuses.'
Paul Graffy directs the Naples Players production of "Les Liaisons Dangereuses."
October 24 might see a mighty gasp from the pearl-clutching patrons that make up a large percentage of the Naples Players fan base. Then again, the few seconds of naked flesh may well earn a collective "meh" from an audience weaned on years of "The Shield," "Sons of Anarchy," "Breaking Bad," "The Walking Dead" and other cable hits in an increasingly coarse media environment.
Naples Players artistic director Dallas Dunnagan believes that Tobye Studio audiences appreciate the smaller, black box venue for its ability to showcase productions "meant to stretch the conservative nature of Naples."

"I don't think [audiences] will have a problem with [the nudity]," Dunnagan said. "The real problem is when an audience member shows up and is unaware of the content of the show."

Seven other community theaters plan productions of "Les Liaisons Dangereuses" this year. At least two contacted by the Daily News said that they opted not to use nudity.
One production, staged at the University of Kentucky, gives the show a modern feel and uses an early 1980s French punk rock soundtrack.

"We used absolutely no nudity in the production," director and Department of Theatre chair Nancy C. Jones said, "yet I feel that it is ultra-sexy."

KEEPING THE PATRONS INFORMED
The Naples Players have made every effort to keep patrons informed of the show's content, Dunnagan said. Signs are at the box office and ticket-sellers notify every buyer that the show has "adult language, situations and nudity." Notices have gone out on the theater's social media channels and in every press release distributed for the show.
'The Tobye Studio is known to be a little more aggressive and a little more avant-garde,' Naples mayor John Sorey, a member of the Naples Players board, said.
"The Tobye Studio is known to be a little more aggressive and a little more avant-garde," Naples mayor John Sorey, a member of the Naples Players board, said.
Naples mayor John Sorey, a member of the Naples Players board, "absolutely" plans to attend a production of "Les Liaisons Dangereuses."
"The Tobye Studio is known to be a little more aggressive and a little more avant-garde," Sorey said. "We are letting ticket-holders know that this is going to occur, but if you've seen the play, you know that this is a 'blink and you miss it' kind of situation."

Sorey takes pains to say that the show will not feature any kind of rampant nudity and stresses that "Les Liaisons Dangereuses" will be "well done."
"It's not like we're going to have fifteen nudes running around on stage," Sorey rumbled, "or it's going to be a strip show or anything like that."

Of course, Graffy and the Naples Players are hoping for applause, solid ticket sales and good worth of mouth about the quality of acting on display - not the quantity of skin on offer.
"I don't think [audiences] are even going to react if it is done organically," Graffy said, confident in his vision. "Once you get over the fact that you've got people naked in front of you, you don't really think of it."

"Les Liaisons Dangereuses" plays at 8 p.m. Wednesday - Saturday and 2 p.m. Sundays from Oct. 24 - Nov. 17. Tickets are $25. Call 239-263-7990 or online at naplesplayers.org.



Theaters grapple with nudity, controversial content in conservative Southwest Florida
From bordello comedies to bare buns and male members and yes, aliens, how have theaters handled tough subjects.
Protesters from the Cape Coral 9/12 Project and the Lee 912 Project showed up on Sunday, April 29, 2012 at the Barbara B. Mann Performing Arts Hall to protest comedian and TV personality Bill Maher's stand-up show.
Protesters from the Cape Coral 9/12 Project and the Lee 912 Project showed up on Sunday, April 29, 2012 at the Barbara B. Mann Performing Arts Hall to protest comedian and TV personality Bill Maher's stand-up show.

It takes a lot to get Southwest Floridians riled up over art. While residents protest big banks, foreclosures and politicians of every stripe, theater escapes the signs and speeches.

At least until April.

A dozen residents, led by Cape Coral's George Miller, protested stand-up comic Bill Maher's sold-out event at the Barbara B. Mann Performing Arts Hall in Fort Myers.

It was the first time protesters had ever showed up at any Collier or Lee county theater in decades, although it was far from the first time action behind the footlights had made waves.
'All the pastors on the Ecumenical Council on Marco Island got up in the pulpit on Sunday and told people not to go,' Pat Berry said about an April 1977 production of 'The Early Girl,' a play about a bordello in a small town.
"All the pastors on the Ecumenical Council on Marco Island got up in the pulpit on Sunday and told people not to go," Pat Berry said about an April 1977 production of "The Early Girl," a play about a bordello in a small town.
"The Early Girl," a Caroline Kava play about a bordello in a small Western town, caused a ruckus once word got out about its content. Island Theater Company co-founder Pat Berry chuckles as she remembers the furor over an April 1977 production by the Marco Players, then called the Marco Island Players.
"All the pastors on the Ecumenical Council on Marco Island got up in the pulpit on Sunday and told people not to go," Berry said.

The effort to stamp out sin on sleepy Marco Island backfired though. Berry said the attention drove curiosity seekers to the theater in droves just to see what all the fuss was about.

"The Early Girl" sold out before it ever opened. Berry keeps the poster - with a photo of the cast and a "SOLD OUT" banner emblazoned on it - on the wall in her office to this day.
Janina Birtolo, the lead character in 'Wit,' rehearses before her performance Wednesday evening at Sugden Community Theater in Naples.
Janina Birtolo, the lead character in "Wit," rehearses before her performance Wednesday evening at Sugden Community Theater in Naples.
While the play, about the lives of prostitutes, discussed frank themes - it never dangled bare flesh in front of audiences. In ultra-conservative Southwest Florida, few theaters risk angering patrons by having men or women disrobe on stage.

The Naples Players production of "Les Liaisons Dangereuses" may be one of the first to crack the "hey there, I'm bare" barrier, although two shows have tiptoed near the no-clothes line before.

The Naples Players also skirted the line when a male character (Tony Oteri) in a 2007 production of "Enchanted April" dropped his towel on stage, allowing audiences a flash of his posterior. That scene, though, was played entirely for comedy.

It got a big laugh," Naples Players artistic director Dallas Dunnagan said.
Janina Birtolo is the lead character in 'Wit,' presented by the Naples Players.

Janina Birtolo is the lead character in "Wit," presented by the Naples Players.
"Wit," Margaret Edson's Pulitzer Prize-winning play about an erudite university English professor battling cancer, allows theaters the option of a dramatic final scene with or without clothes. In "Wit," the central character dies and "walks into the light" immediately before a blackout to end the show. The scene can be performed in various states of undress to suit the sensibilities of any theater's audience.

"There was much discussion going in about whether I could appear nude in the final moments of the play," playwright and actress Janina Birtolo, who performed the role for the Naples Players in 2008, said. "The compromise solution was that I disrobed while walking, facing away from the audience and in very low light and kept underpants on."

"Wit" was performed in the Tobye Studio, the Naples Players' smaller black box space where "Les Liaisons Dangereuses" will also play; Birtolo said that to her knowledge, "there was not a single comment for or against this bit of nudity."

Florida Repertory Theatre adopted the same stance when "Wit" was part of their 2000 season.
"We did have nudity in 'Wit,'" associate director Jason Parrish said. "[The actress] walked (with her back to us) into the light, and no one really made a fuss about it because it was a tender and heart-wrenching play about cancer. It was in no way gratuitous or sexual."

"Les Liaisons Dangereuses," with content that explores explicitly sexual themes as it examines love, power and more on the eve of the French Revolution, may test those boundaries, although the Naples Players have made efforts to inform audience of the content before they buy tickets.
Dunnagan also believes the nudity is necessary for the content of the show, saying it is done "very tastefully in context of the characters."
'Sometimes [nudity] is gratuitous,' Theatre Conspiracy founder and producing artistic director Bill Taylor said. 'Sometimes it is not really necessary for the experience of the play.'
"Sometimes [nudity] is gratuitous," Theatre Conspiracy founder and producing artistic director Bill Taylor said. "Sometimes it is not really necessary for the experience of the play."
Theatre Conspiracy has long championed ground-breaking work, including an early 2000's production of Edward Albee's "The Play About the Baby." The show featured one of the only instances of on-stage, full-frontal male nudity ever in Southwest Florida when Josh Chapman darted across the stage naked.
Theatre Conspiracy founder and artistic director Bill Taylor said the actor - who is no longer involved in community theater - was completely comfortable with the brief moment of nudity.

"I'll do it!" he reports Chapman saying. "There wasn't much of a discussion."

Taylor, when posed a question of whether theaters should keep nudity in a show when a playwright called for it in a script, mused the question.

"Sometimes it is gratuitous," he said. "Sometimes it is not really necessary for the experience of the play."
Taylor said that no patrons ever complained in a "negative way," it was always more of a "Did I see what I saw?" comment.

Theatre Conspiracy often tackles outre material; Taylor said he expected protesters for his production of Terrence McNally play "Corpus Christi," although none materialized. The controversial show depicts Jesus and his disciples as gay men living in modern-day Texas.
Christy Altomare and Jake Epstein as Wendla and Melchior in the 'Spring Awakening' national tour. Barbara B. Mann Performing Arts Hall received letters and complaints during the run of Broadway musical 'Spring Awakening' in January 2010. The first act featured a brief love-making scene that exposed a male actor's rear and a female actress's breast.
Christy Altomare and Jake Epstein as Wendla and Melchior in the "Spring Awakening" national tour. 
Barbara B. Mann Performing Arts Hall received letters and complaints during the run of Broadway musical "Spring Awakening" in January 2010. The first act featured a brief love-making scene that exposed a male actor's rear and a female actress's breast.
Barbara B. Mann Performing Arts Hall also received letters and complaints during the run of Broadway musical "Spring Awakening" in January 2010. The first act featured a brief love-making scene that exposed a male actor's rear and a female actress's breast.

Barbara B. Mann general manager Scott Saxon once faced another strange, and even more strident protest; this one came complete with protestors waving signs in front of TV cameras outside the theater. The incident happened prior to his tenure in Fort Myers.

In 1996, Saxon was working at a theater in Buffalo, New York. He describes a 6 a.m. phone call from a television station, wanting a comment on protesters.
"At the same time," Saxon said, "My tech director - who's laughing hysterically - rang in on my call waiting to tell me that there was a group of about 15 people protesting with signs outside the theater."
"I turn on the morning news," Saxon said, "and there is this group of people carrying signs and chanting: 'John Tesh is an alien. Don't let him communicate with his home planet.'"
"They are still doing it," he laughs. "Always an adventure in our business."


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Why is Prostitution Illegal, but Pornography is Not?
I have heard (and read) this question asked by lots of really intelligent people. See, e.g., Rogier van Bakel. Of course, Rogier’s take on it is more rooted in the “morality” vs. liberty battle. Rogier is a five star general in the battle for common sense and liberty.
Andrew Sullivan asks it a little differently — more as a purely legal legal question.
1. Why is it illegal for me to pay a prostitute for sex, but it’s NOT illegal for a film director to pay two people to have sex in front of a camera and then make money for his product in the form of a DVD or an online download?
2. As a corollary: Why are a prostitute and her john held in such contempt by the media and the public, but Jenna Jameson and Ron Jeremy are treated as rock stars on both cable and network television? Are they not prostitutes? They were, in actuality, paid for sex. No?
The reason that adult film performers are not “prostitutes,” and why paying people to perform in erotica is legal is discussed in the seminal adult-entertainment case, People v. Freeman, 46 Cal. 3d 419 (1988).
In that case, Harold Freeman hired and paid actors to perform in a non-obscene erotic film, called “Caught from Behind, Part II.” “As part of their roles, the performers engaged in various sexually explicit acts, including sexual intercourse, oral copulation and sodomy.” The State of California charged him and convicted him of five counts of “pandering,” defined as “procurement of persons for the purpose of prostitution” — under the California Penal Code.
The Supreme Court of California held:
[T]he prosecution of defendant under the pandering statute must be viewed as a somewhat transparent attempt at an “end run” around the First Amendment and the state obscenity laws. Landmark decisions of this court and the United States Supreme Court compel us to reject such an effort. People v. Freeman
Okay… but how did they come to that conclusion?
The California Supreme Court noted that in order for there to be “pandering,” there must be “prostitution.” Prostitution is defined as “‘any lewd act between persons for money or other consideration.” The state argued that since the performers engaged in sexual acts before the movie cameras “for the money they received,” they were engaged in prostitution, and thus Mr. Freeman was engaged in “procuring” them for prostitution.
If you don’t think too much, this makes a lot of sense. But, we were put on this earth to think. The Court rejected the State’s argument on two grounds — the statute simply didn’t fit, and even if it did, it would run afoul of the First Amendment.
Statutory Construction
This is the dull part. However, it will become apparent why this is just as important as the First Amendment issue.
The Court noted that for an act to constitute prostitution, “the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.” Id (citing People v. Hill (1980) 103 Cal.App.3d 525, at 534-535). Since the payment of the acting fees was the only payment, there was no evidence that any payment was made for the purpose of sexual gratification.
Defendant, the payor, thus did not engage in either the requisite conduct nor did he have the requisite mens rea or purpose to establish procurement for purposes of prostitution. People v. Freeman
The First Amendment Issue
Even if defendant’s conduct could somehow be found to come within the definition of “prostitution” literally, the application of the pandering statute to the hiring of actors to perform in the production of a nonobscene motion picture would impinge unconstitutionally upon First Amendment values. People v. Freeman
The court recognized that one cannot hire someone to commit murder, rape, or robbery just for the purpose of photographing the crime and then claim that the First Amendment protects one’s right to do so . These are crimes “independent of and totally apart from any payment for the right to photograph the conduct.”
In other words, robbery is illegal. Having sex is not. Paying someone to commit a crime like robbery still leaves the underlying crime of robbery — whether there is a payment or not. Paying someone to have sex in a film requires us to determine whether the payment makes the otherwise-legal intercourse “prostitution” or not.
The court started with the correct presumption — that the film was expressive material, and thus presumptively First Amendment protected. The Court had previously held that it was “too evident to require elaboration” that applying criminal penalties to sexual activity in a live theatrical performance “would have an inhibiting effect upon the exercise of First Amendment rights.” (Barrows v. Municipal Court, supra, 1 Cal.3d 821, 827.), and that was the case in Freeman as well.
To subject the producer and director of a nonobscene motion picture depicting sexual conduct to prosecution and punishment for pandering, including a special provision for ineligibility for probation attendant on such a conviction (see fn. 2, ante), would rather obviously place a substantial burden on the exercise of protected First Amendment rights. To include the hiring and paying of actors for acting in such a film within the definition of pandering would therefore unconstitutionally infringe on First Amendment liberties. [1c] Consistent with Barrows, Burstyn, Burton and Flack and consistent with the principles of statutory construction outlined above we are thus compelled to conclude that the Legislature did not intend the antipandering law to apply to the payment of acting fees for performance in a nonobscene motion picture. We observe that if section 266i were applied in the manner urged by the People, it would include within the literal sweep of the statutory language films of unquestioned artistic and social merit, as well as films made for medical or educational purposes. We reaffirm our observation in Barrows, “any more restrictive rule could annihilate in a stroke much of the modern theater and cinema.” People v. Freeman
Back to Statutory Construction
Remember the boring part above? Here is why it is important: The State sought a stay of enforcement of the California Supreme Court’s decision from the U.S. Supreme Court. Justice O’Connor, sitting as a circuit justice declined to enter a stay and opined that there was not much likelihood that the full court would grant certiorari. See California v. Freeman, 488 U.S. 1311 (1989).
O’Connor noted that the state might have had a right to appeal had the California Supreme Court decided the case solely on First Amendment grounds. However, the decision was based on two independent rationales – statutory and First Amendment. Even if the Supreme Court were to review the California Supreme Court’s decision and find that the state court had misapplied the First Amendment, on remand the California Supreme Court would still have reversed the conviction on statutory grounds. Accordingly, the case was over one way or the other.
Interesting… but how might a similar prosecution come out in a different state?
You don’t need to be a Constitutional Law expert to realize that this decision is not binding upon any other state. The California Supreme Court decision only binds the State of California. So what if another state wanted to bring the same exact prosecution? Lets call that imaginary state “Kansas.” What if the Kansas legislature decided to draft its prostitution statute so that it did encompass acting in an adult film?
If that were the case, and Kansas prosecuted someone under its new prostitution law, the statutory construction analysis in Freeman would be absent. However, the First Amendment concerns would still be there. The Kansas Supreme Court would still probably overturn the conviction on First Amendment grounds. If that happened, one must wonder what the U.S. Supreme Court would do.
Justice O’Connor’s prediction was this:
It is unlikely that four Justices would vote to grant certiorari, since the state court’s decision rests on the adequate and independent state law ground that Freeman’s hiring and paying of performers for pornographic films does not constitute pandering under the State Code. California v. Freeman.
Note that she made no predictions on how the Court would rule on the First Amendment issue. If she did, she probably would have guessed that the Court would have also supported the California Supreme Court’s First Amendment analysis. However, that was a very different Court than the one we have today. Justice Brennan was still on the Court, as was Marshall, and Scalia was still a respectable scholar of the Constitution, who seemed to be more concerned with the rule of law than the results of the decision. He has changed in 20 years. The Roberts court might very well pull a five Justice majority together to support a strong anti-porn decision.

So why doesn’t Kansas give it a whirl?
There appears to be a strong mood of détente between the states and adult film producers. Although a prosecution for prostitution in the making of an adult film in one of the 49 other states might be successful, it might fail. Only an insanely social-conservative prosecutor would seek to apply the law this way. There is no shortage of prosecutors who fit that description, so why aren’t there more prostitution-film cases? Because prosecutors usually aren’t incredibly stupid, and the stakes are very high.
Right now, adult film producers in 49 states occasionally look over their shoulder, worried about a Freeman prosecution. The local smokies can knock on the door and scare them with just such a threat. That uncertainty and fear works wonders. I’m sure that more than one cop’s kids went to college on “tip money” generated by just this kind of fear. If nothing else, it makes adult film producers just a little less brazen than they might otherwise be. That slight chill in the air keeps everyone relatively happy. It gives law enforcement a mental tazer, and it keeps everyone from jumping into the adult film industry, thus reducing competition and maximizing profits for those who dare. Everyone is relatively happy.
Imagine if prosecutor Cletus P. Dinkweeder decided to bring a Freeman type prosecution and his state supreme court followed the Freeman analysis in Kansas. Now Kansas becomes a “porn producers are protected” zone. Worse yet, what if the U.S. Supreme Court finally got a chance to affirm Freeman? Do you think Mr. Dinkweeder will win his next bid for re-election? Not a chance. He’d be lucky not to be tarred, feathered, and set on fire by his local congregation.
So, pretty much everyone looks at Freeman and accepts it as the de-facto law of the land. Given the stakes, I expect that it will remain so.

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