## Facts

- Harold Freeman, an adult-film producer, made a sexually explicit film in 1983 using hired performers.
- The film depicted consensual sexual acts performed on camera as part of the production.
- Filming occurred in a private residence not open to the public; the homeowner was paid for use of the location and also appeared in the film.
- Performers were recruited largely through a modeling agency; Freeman paid performers and paid a separate fee to the agency for each performer.
- The prosecution did not charge Freeman under obscenity laws, and no determination was made that the film was obscene.
- Freeman was charged with five counts of pandering (procuring persons “for the purpose of prostitution”) based on hiring five actresses to perform sex acts in the film.
- A jury convicted Freeman on all counts; he received probation and jail time, plus restitution-related orders.
- The intermediate appellate court affirmed; the state supreme court granted review due to First Amendment concerns and statewide significance.

## Issues

1. Whether procuring and paying adult performers to engage in sexually explicit acts on camera for a nonobscene commercial film constitutes procuring persons “for the purpose of prostitution” under California Penal Code § 266i.
2. Whether interpreting § 266i to cover nonobscene film production would unlawfully burden protected expressive activity under the First Amendment.

## Decision

- The court reversed Freeman’s pandering convictions.
- It held § 266i was not intended to apply, and does not apply, to hiring and paying actors to perform in a nonobscene motion picture.
- The convictions could be sustained only if the payments were made for sexual gratification (i.e., payment for sex as such), rather than for a filmed performance.

## Legal Principles

- “Prostitution” in the pandering statute refers to sexual activity for hire in the ordinary sense (sexual services sought for gratification), not compensation for acting in an expressive work.
- Statutes should be construed, when reasonably possible, to avoid serious constitutional problems (constitutional avoidance).
- Applying a general criminal statute to nonobscene sexually explicit filmmaking risks an impermissible restriction on protected speech and cannot be used as an indirect substitute for obscenity regulation absent an obscenity adjudication.
- Payment to performers for a scripted or staged on-camera performance, without a purpose of sexual gratification by the payer (or as the object of the transaction), falls outside § 266i’s “purpose of prostitution” element.

## Conclusion

The court concluded that California’s pandering statute does not criminalize a producer’s hiring and payment of performers for sexually explicit acts as part of a nonobscene film, and it reversed the convictions to prevent an interpretation that would improperly burden First Amendment-protected expression.


People v. Freeman, 758 P.2d 1128 (Cal. 1988)