Freeman was charged in 1987 with pandering - procurement of persons "for the purpose of prostitution" - under section 266i of the Cal.

The trial judge, however, thought jail would be an unreasonably harsh penalty for Freeman's conduct, and sentenced him to probation, despite the fact that this was explicitly contrary to the statute.

The court relied upon the language of the statute for this interpretation, as well as the need to avoid a conflict with the First Amendment right to free speech.

The court viewed Freeman's conviction as "a somewhat transparent attempt at an 'end run' around the First Amendment and the state obscenity laws."

Justice Sandra Day O'Connor denied a stay of the California Supreme Court's judgment, while being critical of its First Amendment reasoning noting "it must certainly be true that otherwise illegal conduct is not made legal by being filmed" she found it unlikely the petition for certiorari would be granted because the California Supreme Court's ruling was founded on an adequate and independent basis of state law.