Prophylactic or Paternalistic? California Assembly Approves Law That Would Make Condom Use Mandatory In Porn Films

220px-Hall_headshot13540068012600We have previously discussed the crackdown on pornography studios over the failure to use condoms in their filmmaking. I have previously expressed concern over such mandates as curtailing free speech principles while accepting that the public health rationale could well prevail in a court challenge. Now the California Assembly has approved a state law to require condom use in pornographic films produced in the state. It is the first such state law and could be subject to a challenge under the First Amendment. This is Democratic state Rep. Isadore Hall’s third attempt to pass such legislation.


Los Angeles County voters approved a condom mandate for adult film performers in 2012.

For Hall, this is simply a workplace safety law. However, this is also a field of artistic expression in the view of those in the industry. Moreover, condom use is not required for average citizens in their sexual relations. Thus, this is not like seatbelt laws (which were also long opposed as denying individual choice) where all drivers were required to wear them. Of course, given the frequency of sex in these films, it could be argued under a rational basis approach that the law reflects the greater risk to the industry. Moreover, where seat belts and motorcycle helmets are imposed to protect the individual (even over their desire not to be protected), condoms protect both the wearer and any sexual partners. After a couple of shutdowns due to AIDS fears, the industry implemented a new program of continuing testing for actors in these films.

The question is whether this law curtails free speech. The industry could claim that some scenes do not lend themselves to condom use due to the fantasy element like Roman games or other genres. They can also argue that this is a matter of consent and individual choice for actors. The counter argument is that other movies are forced to comply with worker safety rules in the use of explosives and other devices. The distinction is that this is an activity that is common to the public, which does not have to comply. Indeed, two actors having consensual sex off camera would presumably not be subject to the restriction. If this is a health-based law, why not make the wearing of condoms required for all adults? How about requiring condoms as a matter of criminal law for those who are high-risk of STDs as when one party is infected? Alternatively, what about a law specifying that anyone who has sex with more than one person in a given week must comply?

The industry has objected that it has been the subject of years of campaigning, including a campaign by feminist leaders to declare all pornography as a form of violence or discrimination against women. It argues that this has more to do about objections to their industry than a real concern for the health of actors. In American Booksellers Association, Inc., et al. v. Hudnut, 771 F. 2nd 323 (1985), the Seventh Circuit issued an important ruling striking down an Indianapolis ordinance that was the product of one such campaign by feminist scholars who argued that pornography lead to violence and subrogation of women. The ordinance declared such films as obscene due to “the graphic sexually explicit subordination of women, whether in pictures or in words.”

Notably, the bill passed with the minimum of votes after several Assembly members from the Los Angeles area abstained. Those members represent districts with pornographic production companies but the failure to vote against the legislation resulted in the passage of the law.

There has been a backlash against the industry in recent years. The law in Los Angeles was viewed as part of this campaign and, if so, it succeeded. Local porn permit applications have plummeted 95 percent after the law took effect. This is part of a sharp loss of jobs in the film industry generally for California, which is no longer viewed as an ideal place for movies by some producers.

The law could force an interesting challenge in court, though states tend to have the advantage in such cases when claiming worker safety or health protection.

75 thoughts on “Prophylactic or Paternalistic? California Assembly Approves Law That Would Make Condom Use Mandatory In Porn Films

  1. IMHO You have now scraped the bottom of the barrel clean of worthy subject matter and are into the unadulterated smirch…..

  2. Imperial president (per se) is what we have today. No monarch on earth is treated with the care,protection,pomp & ceremony,and reverence as is the wont of any president of this United States. The presidency should be mostly ceremonial and let the congress,who susupposedly represents the “voice of the people” do the daily work. The costs of our imperial presidents (plural),secret service protection,Air Force One travel,and all the “baggage” that goes with it,and paid retirement etc., is ridiculous. A common man,lucky to be elected is just like all the rest of us and should be treated as such upon his end of term in office! Your article in the American Legion magazine is excellent,but I’d like to have you address the subject matter above as well. ! What say you ???

  3. Part of the continuing trend in CA to impose more and more regulations – ultimately business is squeezed and it is the citizens who suffer.

  4. More control-freakdom. If conception is actually an objective of the activity, such as between man and wife, deep cuckoldery, breed-my-wife, guess who’s the daddy gang bangs, and other ideas I’d rather not imagine, then this statute, ordinance, or regulation is utterly bogus. Could not a man and wife commit pornography for a professional crew and get around this silly measure?

  5. We have an infrequent commenter who writes about the porn industry, I forget his name. He usually weighs in on posts like this. I hope he does, because he always has an informed take on this subject.

    I’m ambivalent about this. However, the underreported attack on the First Amendment, Operation Choke Point, is a clear attack on the First Amendment. This DOJ program goes after legal industries they don’t like, ala porn, cannabis, payday loans, ammunition dealers, etc. by not allowing banks to conduct business w/ them. Regarding porn, they are going after the banking business of porn stars.

  6. Porn stars who have contracted HIV supported they bill saying that the industry does not care about their health and cares only about profits. It is a public health issue.

  7. Porn in 2014 is shot everywhere. CA has enough wealth to lose the porn folks and not even miss so much as one cent.

  8. I can’t see how this would be a violation of free speech. It seems much more a matter of workplace safety. When will the film industry claim their free speech is being violated because they can’t make snuff films?

  9. I am confident that this law will not alter porn videos one bit. Either it will be ignored and unenforced, or porn producers will just film somewhere else.

  10. Isn’t it for the same reason that films and media today tend not to show people smoking? Today smoking, failing to use condoms, obesity are considered behavioral defects. Of course those who enjoy porn probably feel right at home with behavioral defects.

  11. From the linked article:

    “The bill would not require that condoms be visible in films and videos, leading some to question how it would be enforced.”

    If this is accurate it would somewhat mitigate the first amendment issue. Enforcement would have to rely on whistleblowers I guess.

  12. I had heard that the porn industry was already starting to move to Nevada, Harry Reid’s country.
    For the porn industry it is an economic issue. The last time they started using condoms, sales of videos dropped significantly, which is why they went back to not wearing them.
    There is a former porn star who runs an organization that does regular STD testing in the industry. She is periodically in the news.

  13. I agree with swarthmoremom and Annie on this. It is a public health and worker safety issue. Besides, given the technological advances in the film industry, would it not be possible to make the condoms disappear in the final cut? Or perhaps concerned producers could consult with the Wasatch High School yearbook editing staff on a possible solution.

  14. pete
    simms
    that shot was right on the money
    *******************************************************************
    I got nothin’ to top that.

  15. I agree too with SWM and others it is workplace safety but, as a non lawyer I thought speech was protected but not behavior. This seems to me a law about behavior.

  16. What’s porn? Does it differ from entertainment? I think movie actors should be of minimum height-weight standards. No smoking, no swearing. And, above all else, no violence!

  17. It would seem that there is a compelling state interest to prevent the spread of STD such as AIDS.

    A condom is like a vaccination in the sense of prevention, and better than a pound of cure.

  18. Maybe all porn participants should wear mouthguards and kissing be banned to prevent mono and the spread of flu. Demand workers wear gloves and ban handholding:

    In 1996, The New York Times Magazine interviewed a professor named Robert Swindle about the festering horror of it all. “Think of all those unwashed hands,” Swindle said. “You’re talking about fungal viruses, cold viruses, warts. Who wants warts?” Soon after, the Massachusetts Medical Society aired radio ads imploring listeners to wash their hands frequently, because even a “friendly handshake can carry many illnesses.”

    http://www.bostonglobe.com/ideas/2013/02/17/handshakes-make-you-sick/3cMbO8PWGkmM4IdZqfbpPJ/story.html

    Would female participants be required to wear a condom? After all, not all porn is hetero.

    But as a worker health initiative maybe safe is better than sorry, at least until the industry can better manage its testing procedures:

    “Of those patients they followed, researchers found that 47 of them had at least one sexually transmitted disease, mostly gonorrhea, contracted through oral or rectal sex. And 18 women had oral, anal and vaginal infections at the same time.

    Of those 47 people, 11 would not have been diagnosed through the industry’s testing method, based on urine samples alone. More rigorous testing involves swabs from various areas of the body involved in sexual contact.

    The authors of the study said the results prove that the adult film industry’s standard of detecting sexually transmitted disease through urine-only testing can result in infections going undiagnosed.

    “It’s safe to say with performers that because they are involved in multiple sexual acts with all anatomical parts, that all those parts should be tested,” Rodriguez-Hart said.”

    http://www.huffingtonpost.com/2012/11/02/stds-porn-industry_n_2064639.html

  19. This really raises an interesting point, health care wise. Much of the AIDS/HIV epidemic could have been avoided if the CDC or state officials had quarentined the subjects, something they have the power to do. Now CA wants porn participants to have to wear visible condoms, but not male homosexuals. Why not?

    http://legalinsurrection.com/2014/05/pioneering-university-hivaids-researcher-sacked-over-accurate-but-politically-incorrect-court-testimony/

  20. Heterosexuals accounted for
    25 percent of estimated new HIV infections in 2010 (12,100). About two-thirds (66 percent) of those infected through heterosexual sex were women. http://www.cdc.gov/nchhstp/newsroom/docs/hivfactsheets/todaysepidemic-508.pdf

    So Paul what do you do about these heterosexuals causing 1/4 of new infections? What should they wear?
    And those who get HIV/ through transfusions and the like?
    It is not just a homosexual disease or passed on by homosexuals.

  21. leejcaroll – maybe CA should require everyone who in not in a long-term monogamous relationship to wear condoms? BTW, a significant portion of those women with HIV are getting it from sharing needles.

  22. Simms:

    “pete
    simms
    that shot was right on the money
    *******************************************************************
    I got nothin’ to top that.”

    #####################################

    Yep, pete’s comment is riding above us all.

  23. You have gone off the rails here, Professor.

    The porn industry is interstate commerce. Why can’t it be regulated like any other industry? Shouldn’t the sets be subject to OSHA inspection and to enforcement of OSHA/ NIOSH regulations?

    Important point: condoms don’t have to be visible in the finished product. We are talking about photography and film-making here, after all.

    Free speech has nothing to do with it.

  24. Paul S, Doctors, nurses and polices officers all wear protective gloves when being exposed to pathogens that are carried in the blood. Are you saying that because someone works in the porn industry he or she should not be afforded the same protection?

  25. Well, if porn actors start wearing masks and rubber gloves along with condoms, it will be the end of the current porn industry.

  26. I think I’m the guy Nick Spinelli is referring to. I write for Adult Video News and AVN.com, and I have been covering this controversy since its inception in late 2009—and rather than summarize 5 years worth of news, I’ll just stick with the latest developments. If anyone wants to read everything we’ve written about this issue, go to AVN.com (NOT safe for work) and search for “condoms.”

    First, a little background. There is only one organization that’s been pushing these new laws—one passed by the Los Angeles city council affecting only the city; another, Measure B, a ballot initiative passed in 2012, affecting the entire LA County; and now AB 1576, the third in a series of largely similar bills which has now passed the CA Assembly and must face at least one CA Senate committee, and if it passes the Senate, still has to be signed into law by Gov. Brown—and that’s the AIDS Healthcare Foundation, which we suspect has been milking all the publicity it’s been getting out of this for every donation dollar it can get its hands on. (Meanwhile, its own staff has mutinied, noting that AHF’s president Michael Weinstein has been spending inordinate amounts of money to get these bills passed while neglecting to pay its employees decently.) In fact, it was AHF that wrote all of the bills which Asm. Hall introduced—and interestingly, AHF doesn’t even have a clinic in Hall’s district (Compton) even though Compton has a high rate of HIV infections.

    Also, the main thing anyone should know about all of these laws and bills is that they are NOT just about “condoms.” The wording of each law refers not to condoms alone, but to “barrier protections,” a phrase found in the CA Health Code, Title 18, Sec. 5193. That code section, which was written in the early ’90s for HOSPITAL AND MEDICAL PERSONNEL and doesn’t even mention adult performers, defines “barrier protections” to include latex gloves, dental dams (latex coverings for the vagina during cunnilingus), goggles and face shields, all of which would have to be worn by adult performers while doing their sex scenes. In fact, a close reading of §5193 could easily lead one to the idea that it actually requires no skin-to-skin contact during sex—in other words, the performers would have to wear something akin to hazmat suits. (Don’t take my word for it; Title 18 Sec. §5193 is available through a simple Google search.)

    As most in the mainstream do not know, each porn performer (at least on the hetero side of the business, but some gay performers as well) must be tested every 14 days for a variety of STDs, including not only HIV but also syphilis, gonorrhea, chlamydia, hepatitis A, B & C and a couple of others I can’t remember right now. If a performer has any of the tested-for conditions, he/she CANNOT WORK as a sex performer, and there is a large database where the testing clinic reports, without revealing any medical specifics, that the performer is not cleared for work. Moreover, before each scene, the performers involved physically look at their partner’s/partners’ test results to make sure they’re current and valid. It is a fact that on the hetero side of porn, THERE HAS NOT BEEN A SINGLE ON-SET TRANSMISSION of HIV in TEN YEARS, the last being in 2004, actor Darren James, who’s now receiving free treatment from AHF and has become one of their “porn performer” spokespersons. Also, despite what has been reported in the press about other STDs among the performer population, a Johns Hopkins epidemiologist and biostatistician examined the County Health Department’s claims about the infection rates and has found them to be completely unreliable. The truth is, adult performers as a population have fewer STDs than the patrons of most bars in the city—and LA currently has five new HIV cases PER WEEK among the citizenry, NONE of them among adult actors.

    Although some adult production companies require condom use during sex scenes (and NO ONE requires gloves, goggles or face shields), most don’t, and the main reason for that is that the vast majority of the performer population doesn’t want them, and over 500 have signed petitions to that effect which were delivered to the California Assembly and will be delivered to the Senate when it considers the bill.

    Feel free to leave questions here and I’ll respond if I can.

  27. Hi, Nick S. – Tried to write a comment but maybe it was too long. Anyway, if you want the full story, go to AVN.com (NOT safe for work) and search the articles for “condom”; you’ll see everything we’ve written for five years on this subject.

  28. markkernes, I retrieved your comment from spam, unknown why it got snagged.

    Folks, his comment is above at 4:46

  29. Mark, I apologize for not remembering your name, but I never forget a face. Great comment. Being libertarian, I always am skeptical of govt. intrusion in the lives of people. The “it’s a health issue” comments seen prior to your comment, certainly seem to make sense. But, when I read the facts you present I see the classic “Solution looking for a problem.”

    his year has seen a record number of measles, a disease that was thought to be wiped out. The reason being wacky parents not getting their children vaccinated for reasons based on junk science. These parents are allowed an opt out of vaccines. So, we have children @ risk and the govt. not doing anything to protect kids, who are dependent on adults. We have knowledgeable adults, getting tested every 2 weeks, being forced to use condoms that they don’t want to use. Ass backwards, but we are talking about govt.!

    On a related issue, Mark. What is your take on Operation Choke Point as it relates to the porn industry.

  30. Mark – what is the name of the former female porn star from the 70s-80s who was running the testing?

  31. First, thank you, Darren! (I’d have hated to see all that writing go to waste!)

    Nick: Operation Choke Point is indeed fascinating, though to my knowledge, none of the dozens (if not hundreds) of people who work in porn, who’ve had their accounts summarily canceled by Chase, Bank of America, even Amazon.com, have done anything to justify such treatment. Admittedly, back in the day, some online porn companies used to make it difficult to unsubscribe from their websites, resulting in chargebacks from the banks, but that problem has been just about eliminated through the use of both billing services (there are A LOT of them serving the adult community) and higher interest rates on adult-oriented accounts.

    My thought is that the banks and Amazon (and anybody else who’s discriminating against adult industry workers) are somehow trying to curry favor with religious conservatives—you know: the people who OWN those banks and Amazon—through this type of targeting, in part because the FDIC allows Choke Point to be used against “pornography” and in part because the feds are no longer bringing obscenity cases, much to the dismay of pretty much everyone in the GOP, Tea Party, etc.

    A case in point: An acquaintance of mine, who works with distributor/producer Adam & Eve, had his account canceled even though he had never had any prior problems with the bank, and had never even deposited a check from an adult company in his account. The bank’s (CHASE!) reasoning: He is married to a former adult performer who still dances at strip clubs—and who also never had any trouble with her accounts at the bank, which were also canceled.

    I was just reading today about a guy whose mother has an account at Chase, but the bank won’t let the son deposit any cash in his mom’s account—60 whole dollars!—supposedly because allowing such deposits might be a disguised money laundering operation. This is NUTS. (He has an online petition to get the bank to rescind its policy—FAT CHANCE!—which is here: https://www.change.org/petitions/j-p-morgan-chase-co-end-your-discriminatory-policy-barring-people-from-depositing-cash-into-other-people-s-accounts

    Bottom line: I don’t know enough about this to know where it’s headed, but nobody in the adult industry is happy about this.

  32. Paul: Former actress Sharon Mitchell founded the Adult Industry Medical (AIM) Healthcare Foundation, which successfully tested performers for more than a decade until it was driven out of business a couple of years ago by a combination of lawsuits: one from CalOSHA improperly seeking the identity of a person who tested at AIM who was found to be HIV-positive, and one from a former actress who claimed that AIM improperly disclosed her HIV/STD status to adult producers, even though she signed a waiver permitting just such disclosure. (AIDS Healthcare Foundation represented the woman pro bono.)

  33. I always thought it was very altruistic of Mitchell. I saw her interviewed once and she handled herself well.

  34. Mark – the banks are under pressure from the Obama administration. During the bank take-overs a series of new regulation came into being giving the feds more oversight of the banking industry. Now the Feds are using that power against all sorts of people they do not agree with, read that as the administration does not agree with. Property owners with loans with banks have been told who they CANNOT rent to or their loans will be called in.

  35. I recently saw an article on a right-wing site (Washington Times, actually, but same difference) claiming that gun dealers are having trouble as well getting (or keeping) banking services—and good ol’ Darrell Issa is ready to take up their cause!

  36. Mark, Thanks again. I chuckle to myself because I know there are some folks here who are probably dismayed that we are discussing the pornography business and there is an actual pornography industry journalist amongst us! And, as I’m sure you know, there are more than a few on the political left that are of the same mind w/ the religious right vis a vis porn.

  37. Mark, Gun and ammo dealers, coin dealers, payday loan co., cannabis and porn are what I read. USA Today did a piece within the past week or so on Operation Choke Point.

  38. Mark – thanks for the info. Do you know why gay performers are not tested every 14 days like hetero? Why the discrepancy?

  39. I don’t understand why CA does not legislate condoms for sodomy, regardless of the partners sex. They have the same health issue.

  40. Karen S.: Healthwise, the gay and hetero portions of the porn industry are quite different, in large part because HIV hit the gay community first, and for a long time was thought of as a “gay disease.” Hence, the gay porn industry was an early adopter of shooting only with condoms, since many gay performers of the time were HIV-positive, and no one could be sure who wasn’t, since widespread testing was not done in those days (early ’80s), and many gay activists felt that forcing performers to get tested was tantamount to branding them as outcasts, not to mention an invasion of their privacy.

    In hetero porn before 1998, testing was not required by most producers, and what testing was done, was done with Elisa (antibody) tests, which might not show positive for up to six months. Then, in 1998, one HIV-positive performer infected five actresses, and the industry went into full “panic mode,” the result of which was the creation of the AIM testing facility, and AIM’s adoption of the PCR-DNA test as the industry standard, which test is capable of detecting positives within 10 days after exposure. The current HIV test, by PCR-RNA, is even a little better, with a “window period” of about one week, and as I mentioned before, there has not been an on-set transmission in 10 years.

    Interestingly, in the past few years, there has been a rise of “bareback” gay videos—a fact that worries people on both sides of the adult video industry.

  41. Paul: Well, if AB 1576 passes, it WILL require condoms—and rubber gloves and goggles and face shields—for all on-camera sex acts, gay or straight. However, the hetero adult video industry has shot thousands of anal scenes over the 10 years since our last HIV-positive performer and due to our testing regimen, there have been no transmissions. However, at least one industry lawyer has said that he would support condoms only for anal sex.

  42. All porn stars are vaccinated against HPV; sorry I didn’t mention that earlier. They’re also vaccinated against Hep A and B; no vaccine exists yet for Hep C.

  43. mark:

    Thanks. I did not know that gay performers almost exclusively wore condoms, but didn’t test, and hetero almost never wore condoms, but do test.

  44. Oh please. It saddens me that you have these stubborn ideas, professor, about pornography. Definitely don’t agree with you here.

  45. No more creampies? I wonder how this affects pro-am productions, folks that sell their amatuer content, or couples that don’t need to use a condom.

    On the topic of declining film production in California, specifically the LA area, it has to do with corporate welfare (tax credits) in other states. Even the producers that continue to call LA their home follow the handouts. Although California offers its own credit, it has not kept pace with other states or countries. Numerous studies have been done on these type of credits, including the Clifornia legislative office and they always say the same thing, they don’t actual work and rob the state of revenue.

    There is a pending bill in the California legislature to expand the program.

    Let us not forget the cottage industry of selling exessive credits to wealthy folks to bring down their tax bill.

    http://articles.latimes.com/2013/dec/26/entertainment/la-et-ct-hollywood-financiers-20131226

  46. My satirical observation got deep-sixed (no pun intended).

    Here is another:
    “if porn actors start wearing masks and rubber gloves along with condoms, it will be the end of the current porn industry.”
    That will greatly narrow the porno appeal to a particular group of latex medical fetishists. German pornographers might reasonably fight back with vanilla sex scenes without condoms!

    My observation earlier was that: If conception is actually an objective of the sex act such as between a man and wife, extreme cuckholdry, or “guess-the-daddy” practices, what possible justification can this law have?

  47. Ishobo: It’s true that there are a couple of series out there that feature creampies, but what most people are unaware is that the vast majority of those “creampies” are fake: The guys don’t cum inside the women, and a semen-like liquid is turkey-basted into their asses and that’s what fans see leaking out. Ssssh! Don’t tell anyone!

    Also something most people don’t know: The porn industry gets zero, zip, nada in the way of state (or federal) tax breaks for shooting movies in California—or anywhere else. If you look at the “movie tax break” legislation passed, in almost every state that has done so, sexually explicit movies are specifically exempted from being able to use that tax advantage that mainstream features are given. The California bill you reference also excludes porn.

  48. Oldfox33: You are correct that if AB 1576 passes and is signed into law in California, the adult industry will move elsewhere. One such possible location is Europe, where they are much less censorious about filming sexually explicit movies. Frankly, I’m sure the industry would rather remain in the U.S., and while Nevada seems the likely first choice if the bill passes, the fact is, porn can be—and IS—being shot in pretty much every state in the union.

  49. Thanks, markkernes. We might have to return to the days of 8mm porn which mostly came from Denmark, until US Customs decided that it needed to protect the American porn industry.

    I have a short video treatment idea that now I wonder will it or will it not violate the workplace safety and bad hygiene issues involved here:

    Three young ladies get on an elevator. There is a little puddle about two inches in diameter on the floor. The first woman bends over, sticks her finger in the puddle, puts her finger to her tongue, and says, “Thank God that’s not MY husband.”

    The second female tastes it and says, “That’s not MY boyfriend.”

    The third gal, tastes a finger-full and says, “Hmm, not any body in THIS building.”

    What do you folks think? Ethical or unethical pornography?

  50. Mmmm, my early post does not seem to be there because of the S word? Isn’t this all about the S word & containing it? If you really take a look at the porn industry, you would have to conclude that a law using condoms in porn movies would be like a law banning CHORUSES for the Song Industry!

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