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.