Filming Sex in Public

I.  Introduction

Increasingly, our law firm is asked about the legality of filming nudity or explicit sex scenes in public.  Recent obscenity charges filed against amateur adult content producers in Arkansas and Louisiana have re-ignited discussions about this type of content.  Before that, it was the public indecency charges against webcam model “Library Girl,” a/k/a Kendra Sunderland.  There is something intriguing about the possibility of getting caught that perks interest in some viewers.  Sex scenes filmed in public – even with (purported) members of the public watching – have now become commonplace online.  Given the interest in this topic, this article will explore the various legal issues triggered by public sex content.

To start, the mere fact that explicit sex scenes are shot in public does not make the content automatically illegal.  To strip erotic media of presumptive First Amendment protection, the content must be deemed obscene by a judge or jury.  The issue of obscenity is determined by application of the Miller Test, with which most readers are already familiar.  Part of that test includes an evaluation of “contemporary community standards.”  Using this test, the so-called trier of fact (judge or jury) will consider whether the content is acceptable in the community, under its standards relating to erotic fare.  The “community” can be a county, a metropolitan area, a state, or even the nation as a whole, depending on the legal precedent in a particular jurisdiction.  Presumably, the fact that the filming occurred in public could be considered in the overall obscenity determination, in connection with the evaluation of community standards.  Some jurors might be more offended by the fact that the sex acts occurred in public, and thus more likely to conclude that the content is not consistent with the community’s standards.  A skilled defense attorney may be able to parse legal arguments about judging only the content, not the underlying activity, but the public nature of the material could enter into the analysis.

While obscenity charges have become increasingly rare in the last decade, the recent spate of cases illustrates how public filming can call attention to content that might otherwise remain off the radar.  Members of the public, themselves, might witness the public sex display, and decide to report the activity to law enforcement.  Alternatively, investigators might notice that explicit content is being filmed in public, and then decide to track down and charge producers or distributors in a perceived effort to protect the public from future exposure to the activity.  In sum, the public aspect of the filming increases the potential for a challenge to the legality of the content.

II.  Public Indecency

While obscenity is always a possibility, more commonly creating public sex content can result in “public indecency,” “lewdness,” or “indecent exposure” charges.  These laws typically prohibit some sort of lewd exhibition of the human body.  Engaging in a sex act in public can result in a conviction under this type of statute.  Photographers could be charged as accomplices.  What if the sex act is part of a bona fide film production or performance?  Lewdness and indecency laws have routinely been used against nude dancers who cross the line from performing a dance routine to performing a sex act.  Efforts to raise First Amendment defenses to charges involving public sex acts have generally been unsuccessful.  However, the line is not crystal clear.  If Miley Cyrus rubs her crotch during a singing performance, this might qualify as lewd under some statutes, but also potentially protected by the First Amendment.  While free speech arguments could theoretically be raised, filming explicit sex acts in public is likely within the scope of what is prohibited by most indecency and lewdness laws.

III.  Nudity Ordinances

If the content at issue involves only nudity, but not sex, the activity may not violate indecency or lewdness laws.  Simple nudity (without intent to arouse or offend) is not prohibited at the state level, in many states.  However, numerous county or municipal ordinances do prohibit various degrees of public nudity.  These ordinances are often directed at topless dancing clubs, but they generally apply to any nudity in public.  To avoid constitutional challenges, these local ordinances routinely include exemptions for expressive activity that is protected under the First Amendment.  Therefore, the production of erotic content in public might fall within such an exemption.  However, the courts have ruled that in order for expressive conduct to be protected, it must be designed to convey a particular message, and there must be a great likelihood that the message would be understood by the viewers.  The legal protection afforded to filming of public nudity will thus turn on the type of content being filmed.  The mere act of being nude is generally not deemed to be sufficiently expressive to warrant First Amendment protection.  However, nude dancing can convey a “message of eroticism” which carries constitutional protection.  Again, consideration must also be paid to whether those who view the activity being filmed will understand whatever message is being conveyed by the performers.  While filming nude performers may generate some degree of constitutional protection, law enforcement may well arrest first and deal with the constitutional nuances later if the filming occurs in public view.

The presence of minors during any public sex filming can result in disastrous consequences.  Many of the complaints about filming nude or explicit content in public arise from the potential that minors might be exposed to the activity.  Adult content producers should ensure that no minors are in the vicinity of any productions, to avoid substantial legal danger.  Most states prohibit exposing minors to “harmful” material, including pornography.  Even more serious are statutes which prohibit exposing one’s genitals to a minor, or engaging in a sex act in front of a minor.  These laws typically carry sex offender penalties upon conviction, in addition to the usual fines and imprisonment.  Filming in any public place where minors might gather carries risks that a minor will happen by at the wrong time.

IV.  Civil Claims

In addition to potential criminal charges, filming explicit content in public may result in a variety of civil claims by members of the public, local governments, or even intellectual property holders.  Initially, an individual who is exposed to the activity could theoretically assert a claim for intentional infliction of emotional distress.  The contours of these claims vary from state to state, but they typically require some outrageous activity that results in mental pain and anguish.  A particularly sensitive individual might decide to pursue such a claim.  Members of the public who happen to be captured on film can also assert claims of their own.  Generally, there is no expectation of privacy when someone appears in public, but people have a certain right to control publication of their image and likeness.  Filming a person, and using that footage in a commercial adult video can therefore trigger claims for violation of publicity rights.  If a producer used a location to repeatedly film public sex acts, the local authorities could file a “nuisance” action, asking the court to shut down the activity.  Cities have also been known to object to filming near recognizable landmarks.  Finally, adult content producers have faced claims involving trademark infringement when a famous brand or logo appears in an adult film.  Any number of protected trademarks could be captured when filming in public.  For example, we’ve defended claims brought by a fraternity when its Greek symbols briefly appeared in an adult film, and claims from a well-known hotel, whose brand was captured during taping.  Often, trademark holders object to their brands being even remotely associated with adult content.  Potentially viable trademark dilution claims could therefore be asserted in such instances.

V.  Conclusion

Filming sex scenes in public view remains taboo, but generates niche interest.  As shown above, a wide variety of claims could result from producing or distributing this type of content.  As always, the legal risks should be weighed.

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