Right to Shoot Porn Upheld in N.H.

Dec 12, 2008 5:00 PM PST
CONCORD, N.H. — The state Supreme Court has ruled that a former district court bailiff who offered a couple $50 an hour to videotape them having sex was not guilty of prostitution, because there was no evidence he was satisfying his own sexual pleasure.

The court ruled that the opposite finding would illegally criminalize the production of a sexually explicit but not obscene movie, which is protected as free speech under the state constitution.

The California Supreme Court made a similar decision in California vs. Freeman in 1988, opening the way for adult video production to flourish in California.

"It seems like New Hampshire has their own Freeman case now," adult industry attorney Michael Fattorosi told XBIZ. "It’s nice to see that civil liberties and rights are still important in New Hampshire. There’s a lot of people filming around the U.S., so this bodes well for people being prosecuted in other states for filming content.

"I’m sure this case will have a spillover effect to neighboring states and other states throughout the union," he said.

Although the ruling favors Robert Theriault, 51, he remains convicted of a second charge of prostitution involving another couple which was argued by Theriault's attorney on a theoretical basis, that the state's prostitution law is too broad — because it could be applied to activities that are protected, like making movies — and should be thrown out.

Theriault's attorney was more specific in the case that he won, saying that Theriault needed would have to be considering his own sexual gratification when he approached the couple in order to be guilty of prostitution. Instead, the defense said, Theriault was simply making the kind of sexually explicit movie that is protected speech under the state constitution.

The justices agreed.

"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 court ruled.

The court did not rule out the possibility that the state could outlaw the making of pornography. But the court said in order to do so, the state must show the filmmaker was in it for his own sexual arousal.

The prosecutor in both cases against Theriault said that he had not decided how to respond to the ruling. If the statute of limitations has not expired, Theriault could be charged again.

The entire opinion can be read here

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