Did Texas Just Ban Porn Production?

Stabile noted: “Now, granted, creators might be able to get around this if you *don’t* pay anyone — as in a content trade — but not sure how broadly “fee” could be defined. But I certainly would be wary of paying other talent to work with you, either directly or through an agent.”

At the center of this hoopla is an overly broad clause laid out in House Bill (HB) 1540.

This bill was presented in the Texas legislature this past year with the intention of clarifying specific criminal offenses, especially those dealing with the harm of a minor.

However, HB 1540 features language that establishes that a person is committing a felony offense when they knowingly offer or agree “to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another.”

It’s worth noting that in the benchmark case California v. Freeman, the state Supreme Court of California held that Freeman’s conduct in paying performers to have sex on camera did not constitute prostitution or pandering, because “in order to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification.”

While California and Texas have different constitutions and the new Texas law is different from the pandering statute Freeman was accused of violating, a court could find that a Texan who pays performers to have sex on camera is paying those people primarily to create an expressive work that is presumably protected by the First Amendment, rather than for “the purpose of engaging in sexual conduct with that person or another,” as the new Texas law states.

Still, the broad nature of the new law’s language could lead a reasonable person to believe that adult content producers could be held criminally liable for participating in productions and shoots based in Texas, as Stabile pointed out in his Twitter thread.

“Let’s not forget that this is aimed (as in a gunsight) at full-service sex workers,” Stabile wrote. “It’s now a felony to hire a sex worker, which is only going to make their work that much more dangerous.”

“No one wants a paper trail, let alone to get vetted,” Stabile added.

Republican Gov. Greg Abbott signed HB 1540 into law on June 16. The bill will enter force over the coming weeks and months. By consequence, a de facto ban on producing adult content in Texas may be the case moving forward.

Beyond the new Texas law and the civil lawsuit filed against Pornhub parent MindGeek for alleged sex trafficking (among other claims), the adult entertainment segment has gotten quite a bit of bad press in recent months. Nicholas Kristof, the controversial New York Times opinion contributor, stoked most of the current outrage at the industry with the publication of his deeply flawed “Children of Pornhub” column in December of 2020. For social conservatives and other adherents to the religious right living in Republican political strongholds like Texas, the outrage against porn is very open and toxic.

The toxicity is so rife at times that people claiming to exercise their First Amendment rights to protect the morality of society are trampling the same First Amendment rights that protect most types of porn and sexual freedom as a form of expression. Watch yourselves in Texas.

Texas State Capitol photo by LoneStarMike licensed under the Creative Commons Attribution 3.0 Unported license. It has been cropped and resized.