Miami New Times Questions Legality of Fla. Porn Shoots

Oct 8, 2013 9:30 AM PST

MIAMI — The question of whether shooting porn in South Florida — a recent haven for mandatory condom law-weary Porn Valley producers and online companies —  is legal, is being questioned by the local media and lawyers.

Challenging AHF President Michael Weinstein’s stance that shooting porn in Florida is tantamount to prostitution and thus illegal, a Miami New Times article pointed out that some recent reports, including an editorial in the Sun-Sentinel has erroneously quoted Weinstein’s assertions as fact, when “the truth about the legality of porn in Florida is much murkier.”

The Times reached out to Free Speech Coalition (FSC) CEO Diane Duke for comment on the controversial Florida situation.

"Weinstein has been running around screaming that it's not legal, but that's ridiculous. 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," Duke said.

One local legal scholar, Mary Anne Franks, a professor at the University of Miami agreed with Duke, but admitted that the laws are sketchy at best.

"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," Franks told the Times.

She added, "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."

Questioning the distinction between simply paying a hooker and filming the act as being legal, as opposed to a set porn production, the lawyer said the acts are for the most part subjective, depending on who’s interpreting them.

"Basically, the distinction is arbitrary and doesn't hold up to legal analysis," Franks said. "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."

The good news for porn producers such as Bang Bros and Reality Kings, spotlighted as major players in the area, Franks said that the legality isn’t a big deal because porn is too popular to handcuff.

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

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