Is It Illegal to Make Pornography in North Carolina?

Lawyers Weekly ran a brief article a couple of months ago about the above question. The article is here, behind a paywall. What follows is my own analysis of the issue. Obscenity. The first issue, and the only one addressed by Lawyers’ Weekly, is whether making pornographic movies would violate the obscenity statutes. Specifically, G.S. 14-190.5 makes it a misdemeanor knowingly to “[p]hotograph [oneself] or any other person, for purposes of preparing an obscene film . . . for the purpose of dissemination” or knowingly to “[m]odel[], pose[], act[], or otherwise assist[] in the preparation of any obscene film . . . for the purpose of dissemination.” At first glance, that might seem to cover the production of pornography, but Lawyers’ Weekly quoted several lawyers, most of whom waffled on the question. The waffling was entirely justified, because G.S. 14-190.1 defines material as obscene only if it depicts sexual conduct in a “prurient” and “patently offensive way” that “lacks serious literary, artistic, political, or scientific value.” Those terms are incredibly vague, but, of course, are constitutionally required. Miller v. California, 413 U.S. 15 (1973) (establishing the boundaries of obscenity for purposes of the First Amendment). Courts have often found pornographic material to fall outside the definition of obscenity, so at least some pornography probably could be produced in North Carolina without running afoul of the obscenity laws. Prostitution. But perhaps there is another way to approach the issue. Could producing pornography involve a violation of the prostitution laws? Under G.S. 14-203, [...]