It’s not obscene to ask

“Is porn production illegal in North Carolina?”

That question recently appeared among the top search terms that brought visitors to N.C. Lawyer’s Weekly’s website and it jumped out from the queries about subjects such as the Fifth Amendment and the Dram Shop Act.

Being a servant of our readers, Sidebar set out to answer this straightforward question and discovered that the answer is anything but.

Noelle Talley, spokeswoman for the N.C. Department of Justice, suggested talking with local district attorneys after saying the DOJ had not issued any opinions or advisory letters regarding the legality of porn production.

Megan Cooke, a public representative of the Mecklenburg County District Attorney’s Office, looked into the issue and said, as far as she could tell, state laws against obscenity do not specifically define pornography.

“It’s a really complex issue,” she said. “We’d have to consult the laws and make a decision about their application on a case-by-case basis after some conduct has occurred and charges are brought.”

If anyone would know the answer, it’s Wade Smith, a partner at Tharrington Smith in Raleigh who defended Adam & Eve, a Hillsborough-based adult mail order company, against obscenity charges during a high-profile trial in the 1980s.

During the pre-Internet era, the state prosecuted Adam & Eve and other similar businesses for selling and distributing porn, but the same laws that would presumably apply to adult film production were at play.

After a trial, which involved the jury watching about eight hours of porn in the courtroom, that jury determined that Adam & Eve was not violating the state’s obscenity statutes, Smith said. He has had several clients in the adult industry and boasts a perfect record when it comes to defending them against obscenity charges.

“I’ve never looked at the question of whether it would be unlawful to produce it,” he added, “but one would think that if it’s not unlawful to sell or possess it, it would not be unlawful to produce it.”

According to Mike Tadych, an entertainment law and First Amendment attorney at Stevens, Martin, Vaughn & Tadych in Raleigh, whether a porn producer is breaking the law could hinge on the so-called community standards test in the state’s obscenity laws.

“What might be obscene in one area of North Carolina might not be deemed obscene in a different area,” Tadych said. He advises that anyone who decides to produce mainstream adult movies here should assume a “modicum of risk for criminal prosecution.”

“I don’t think it’s an easy answer,” he said, adding that while working at a previous law firm a men’s club client asked him to study this very issue. Unfortunately, his partners nixed the idea before he was able to do the research.

“They said they didn’t want that type of client,” he said. “Obviously, the community standards were different in that firm.”

In the movie production hub of Wilmington, aka Hollywood East, Johnny Griffin, director of the city’s regional film commission, said he wasn’t aware of any adult videos being made in the area. But that doesn’t mean porn isn’t being produced, he added, because permits usually are only required for public shoots.

“If someone was trying to fly under the radar, they might not communicate with us or have a reason to communicate with us,” he said.

Griffin suggested that there could be an ulterior motive behind the search question. He suspected that opponents of film tax breaks were looking for ammunition to defend their cause.

“They could be using this to say, ‘See, this is what they’re doing with your tax dollars,’ ” he said.

So, does North Carolina offer tax incentives for porn production? That’s a much easier answer.

No.