We 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.
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.
simms
that shot was right on the money
Simms:
Touche’!
Je[p. Help Help The Vortex of Doom at my comment.
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.
Paul I restored your comment.
Folks, Paul’s comment is above at 11:07
Darren – thanks, it was only there for 6 hours. 😉 Not your fault.
@mespo727272
Hee. I can be childish all I want.
Simms:
Whistleblowers, you say?
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.
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.
What Swarthmore mom said. This is a public health issue.
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.
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?
Porn in 2014 is shot everywhere. CA has enough wealth to lose the porn folks and not even miss so much as one cent.
I guess this is another way to ply your wares.
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.
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.
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?
Part of the continuing trend in CA to impose more and more regulations – ultimately business is squeezed and it is the citizens who suffer.
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 ???
IMHO You have now scraped the bottom of the barrel clean of worthy subject matter and are into the unadulterated smirch…..