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. 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.

  2. 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.

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

  4. 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

    • 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.

  5. 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?

  6. 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.

  7. 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?

  8. 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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