SAN FRANCISCO — A state prosecutor encountered a barrage of skeptical questions Thursday from the California Supreme Court as she defended the precedent-setting use of an anti-pandering law to prosecute a Los Angeles sex-film producer.
Court members repeatedly expressed concern that using the 1982 law against film makers would violate the constitutional right to free expression and threaten the movie industry in California.
But state Deputy Atty. Gen. Lauren Dana argued that there is nothing unconstitutional in prosecuting producers who pay performers to commit sex acts on film, which she said amounts to prostitution. Such prosecutions, she said, could help stop the spread of AIDS and other sexually transmitted diseases among performers in pornographic films.
'Paid People to Act'
A lawyer for Harold Freeman, producer of more than 100 full-length sex movies who faces jail under the pandering law, contended that if Freeman can be charged, so could the makers of first-run films or even the producers of sex-education movies.
"Mr. Freeman paid people to act," said his attorney, Dennis A. Fischer of Santa Monica. "He did so for the undeniable purpose of creating a film--not to provide for sexual gratification . . . as do those who promote prostitution."
The proceedings were marked by lively exchanges and graphic descriptions as the court heard arguments in a far-reaching test of law enforcement objectives and constitutional guarantees.
In the case at issue, Los Angeles authorities invoked the pandering law--ordinarily used as a weapon against street pimps--to prosecute Freeman for hiring actresses for up to $800 a day to perform explicit sex acts in a movie called "Caught From Behind II."
Freeman, a prominent figure in Los Angeles' $500-million-a-year adult-film industry, was convicted of the charge in 1985. But a trial judge in Van Nuys refused to impose the three-year minimum prison term, sentencing Freeman instead to 90 days in jail and a $10,000 fine. The validity of the sentence is pending in a separate case before the court.
In Thursday's hearing, court members peppered prosecutor Dana with questions about using the law against movie producers.
Justice Edward A. Panelli noted that there was a "significant difference" between prosecuting a producer who films an illegal act--such as unlawful intercourse with a minor--and one who films an act between consenting adults that in itself is not illegal.
"Isn't the problem that a lot of our major, first-run films could be prohibited if you're correct?" Panelli asked Dana.
The state's attorney replied that the court could limit such prosecutions to the filming of actual sexual intercourse, thus avoiding that problem.
"So courts can decide what deserves an R rating and what deserves an X rating?" Justice Stanley Mosk asked skeptically.
"The industry would know full well what would be permitted," Dana said. "It would not prohibit touching or caressing, for example."
Pressing the point, Justice Marcus M. Kaufman asked how producers could make sure their film-making was legal.
Dana answered that they could employ simulated sex, rely on unpaid "volunteers" as performers or "film it in Nevada--where prostitution is legal."
When Dana conceded that under the state's theory, the filming of illegal gambling could be prosecuted if it were real gambling, Mosk remarked: "You're going to drive motion pictures out of Hollywood with that attitude."
Similarly, Appellate Justice J. Anthony Kline, appointed temporarily to sit in the case, raised the possibility that if the prosecution of Freeman were upheld, it would open the way for charges against the makers of films like "The Graduate," "Midnight Cowboy," and "Last Tango in Paris."
Fischer stressed to the justices that the law was not intended to be used against movie producers and that Freeman's prosecution "may be a way of getting at the adult-film industry" where efforts to prosecute under obscenity laws have proved unsuccessful.
Even if prosecution were limited to instances involving actual intercourse, it would still violate the First Amendment, Fischer said. He suggested for instance that the law might be employed against film makers who pay performers in sex-education movies.
The court also heard spirited argument in another case raising constitutional concerns--a lawsuit charging fraud against the Rev. Sun Myung Moon's Unification Church for allegedly deceptive recruiting practices.
Lawyers for two former church members who brought suit said that the guarantees of religious freedom, while protecting religious beliefs, did not protect the church from allegations of fraudulent conduct. They contended that church recruiters had deceived the two by initially denying any religious affiliation and then had coerced them into joining by using sophisticated "brainwashing" techniques.
Victim 'of a Lie'
Ford Greene of San Anselmo, attorney for former member David Molko, said that Molko had been the victim "of a lie" and was denied a fair opportunity to decide for himself whether to join the Moon church.
Attorney Stanley F. Leal of Sunnyvale, representing his daughter, former member Tracy Leal, told the court: "All they have to do is tell the truth. . . . Then the recruit would know what was facing him."
Jeffrey S. Ross of San Francisco, the attorney representing the church, denied the claims of brainwashing and said the church did not believe in deceptive recruiting practices. He urged the justices to uphold a state Court of Appeal ruling dismissing the suits brought by Molko and Leal.