Court Of Appeals Denies First Amendment Right Exists For Condom Use In California Pornography Industry

By Darren Smith, Weekend Contributor

200px-US-CourtOfAppeals-9thCircuit-Seal.svgWe previously discussed HERE the concern that condom requirements imposed upon the adult film industry would have a chilling effect on the First Amendment but a court challenge to the public health compelling interest of the state likely would prevail. A circuit court of appeals addressed such matters recently.

The U.S. Ninth Circuit Court of Appeals affirmed the ruling of the District Court denying an injunction against Los Angeles County regarding the Los Angeles Safer Sex in the Adult Film Industry Act, including the enforcement of mandatory condom use in certain situations. The lower court ruled that the requirement of condom use constituted a de minimis effect on expression and was “narrowly tailored to achieve the substantial government interest of reducing the rate of sexually transmitted infections, and left open adequate alternative means of expression.

Plaintiffs in the appeal of the lower court hearing and this appeal are Vivid Entertainment, LLC; Califa Productions,Inc.; Kayden Kross; and Logan Pierce which are organizations and individuals who make adult films in Los Angeles County. The Los Angeles County Department of Public Health, whose director, a defendant, sent Plaintiffs a letter stating its intention to enforce the voter-initiated County of Los Angeles Safer Sex in the Adult Film Industry Act (2012) (commonly known as Measure B) (codified at Los Angeles County, Cal., Code tit. 11, div. 1, chapter. 11.39, and amending tit. 22, div. 1, chapter. 22.56.1925). Measure B imposes a permitting system and additional production obligations on the makers of adult films, including a requirement that performers wear condoms in certain contexts. Plaintiffs sued for declaratory and injunctive relief, arguing that Measure B burdens their freedom of expression in violation of the First Amendment. Defendant Los Angeles County answered that, although it would enforce the ordinance unless ordered by a court not to, it did not intend to defend Measure B because it took a “position of neutrality” with respect to the ordinance’s constitutionality. The official proponents of Measure B intervened to defend it.

The district court issued a preliminary injunction forbidding Defendants from enforcing Measure B’s fee setting provision, which gave Defendants discretion to set fees for permits; a provision that allowed warrantless searches by county health officers of any location suspected of producing adult films; and the broad permit modification, suspension, and revocation process. The court denied preliminary injunctive relief, though, for much of the ordinance, including its condom and permitting requirements.

The film industry also argued that the permitting scheme and the requirement of the use of condoms constituted Prior Restraint of their freedom of expression in creating adult films; an act permitted by the First Amendment.

The industry submitted declarations stating that condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease. Under this view, films depicting condomless sex convey a particular message about sex in a world without those risks. The Supreme Court has cautioned, however, that “‘[i]t is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.’”Barnes v. Glen Theatre, Inc., 501 U.S. 560, 570 (1991)

Courts previously ruled that to determine whether conduct is protected by the First Amendment, we ask not only whether someone intended to convey a particular message through that conduct, but also whether there is a “great” likelihood “that the message would be understood by those who viewed it.”

The Ninth Circuit stated it is ”unlikely that viewers of adult films will understand that message. So condomless sex is not the relevant expression for First Amendment purposes;6 instead, the relevant expression is more generally the adult films’ erotic message[…]” and “does not ban the relevant message completely.”

Citing Pap’s A.M., 529 U.S. at 293; Gammoh, 395 F.3d, the Ninth Circuit held the “condom mandate does not ban the relevant expression completely. Rather, it imposes a de minimis restriction[…]the Supreme Court held that the pasties-and-G-string requirement did not violate the First Amendment because, even if the ban “has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped,” that effect was de minimis. […] That was so even though the ban “certainly ha[d] the effect of limiting one particular means of expressing the kind of erotic message being disseminated.”

The Supreme Court noted that a requirement that erotic dancers wear pasties and G-strings “does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic.

As for the condom mandate, the requirement that actors in adult films wear condoms while engaging in sexual intercourse might have “some minimal effect” on a film’s erotic message, but that effect is certainly no greater than the effect of pasties and G-strings on the erotic message of nude dancing.

The issue of a condom requirement has an economic and disadvantages in the competition against other unregulated studios in the industry because films using condoms are not wanted by customers.

By Darren Smith


Vivid Entertainment v. Fielding No. 13-56445 (pdf)

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18 thoughts on “Court Of Appeals Denies First Amendment Right Exists For Condom Use In California Pornography Industry”

  1. Mark, Thanks for taking the time to give an informative response. You are our porn expert! Happy Holidays.

  2. Oh, what a can of worms has been the Measure B litigation. My most recent article on the subject, about the Ninth Circuit’s opinion, is here: But it’s hardly the whole story.

    First, let me respond to Paul C. Schulte: There have been NO on-set transmissions of HIV between heterosexual performers in over 10 years. It simply hasn’t happened. How do we know? Because we test every one of those performers on a biweekly basis, and EVERY “report” of an HIV case in straight porn has shown that the infection was acquired off-camera in the person’s private life—and was discovered before he/she had a chance to infect another performer on camera. (The reason I say “straight” performers is that many gay performers are HIV-positive and are not STD-tested on a regular basis, and on the gay side of the industry, they are allowed to perform using condoms, which they’re fine with doing, because HIV has had such an impact on gay porn viewers that they have no problem accepting sex scenes with condoms. Straight viewers have demonstrated, through plummeting sales, that they do not wish to see condoms in sex scenes; hence the straight industry’s stringent testing regimen.)

    For those who want to read the whole story of Measure B, they can search my articles on (Just search for “Measure B”) But there are a couple of points I can make for Turley readers here.

    1) Measure B isn’t just about condoms. If you read the text of Measure B, even the version abbreviated by Judge Pregerson (the district judge handling the case), you will find that it references California Health Code Title 8 Sec. 5193. That section, which was written for hospital and other healthcare workers, requires not just condoms for people who may come in contact with blood or “other potentially infections materials” (OPIM), but also dental dams (for cunnilingus), latex gloves, goggles (for fellatio) and face shields (for ejaculations). Imagine trying to enjoy watching a hardcore sex scene with performers wearing THAT apparatus! (In fact, a careful reading of Sec. 5193 might even lead one to think that something approaching a hazmat suit is what’s actually necessary to avoid “transmissions.”)

    2) Measure B was instigated by AIDS Healthcare Foundation (AHF), which has been trying to gain control of the adult industry since roughly 2009 when they filed their first petition with CalOSHA to require condoms in all sex scenes. AHF gathered all the signatures to put Measure B on the ballot, blatantly lying to potential initiative signers by claiming that HIV was rampant in porn, which it most definitely is not. (As I said, no on-set transmissions in 10 years.)

    What’s important about that situation is that Measure B was forced on Los Angeles County by its win at the ballot box, but LA County, understanding what a massive job it would be to attempt to identify and inspect all hardcore adult shoots over the course of a year, has expressed no interest whatsoever in putting the Measure into practice. So when Vivid Entertainment and two adult performers sued the county to overturn Measure B, the County expressed no interest in defending the law. That’s when AIDS Healthcare stepped in—illegally.

    Folks here are probably familiar with the U.S. Supreme Court case of Hollingsworth v. Perry, which found that Hollingsworth, a member of a religious group opposed to same-sex marriage, sued to overturn California’s having legalized that form of marriage. But what the Supreme Court found was that Hollingsworth had no standing to file such a lawsuit, since the same-sex marriage laws didn’t affect Hollingsworth in any substantial way.

    Similarly, AIDS Healthcare also has no standing to challenge Vivid’s lawsuit against Measure B, because although they mounted the initiative campaign, whether or not adult performers use condoms, dental dams, goggles, etc. when performing does not affect any AHF employee in any substantial way, since none of them work in adult and none of them are likely to have sex with any adult performer. The problem is, Judge Pregerson allowed AHF to enter the case an an intervenor before the Supreme Court’s Hollingsworth decision, and the Ninth Circuit, using a couple of obscure cases, has allowed AHF to continue defending this law—and thereby creating an interesting Catch-22: If the case proceeds to trial, AHF’s attorneys will be the only “defendants” questioning witnesses, introducing evidence and filing motions—but even if they win the case, the adult industry’s next stop will be the Supreme Court, which has already supported the lower court’s dismissal of the Hollingsworth case because Hollingsworth had no standing. AHF likewise has no standing, so to allow AHF to present evidence at trial would fly directly in the face of the Hollingsworth ruling—and would represent a substantial misuse of a U.S. district court’s time.

    3) Finally, those interested in statistics regarding sexually transmitted infections in the adult industry will find that the statistics trumpeted by the County Health Department are generally inaccurate. I’d call your attention to these two articles on that subject:

    1. Folks, Mark wrote an informative comment above by Mark Kernes in the event you might have missed it since I restored it from moderation.

      Mark, you might not have been aware but WordPress only allows two links per comment. I corrected this for you so it would work. If you have more links for the readership additional comments can be made.

    2. markkernes – frankly it does not make any difference where the HIV is coming from, on set or off set, an infected performer is a potential risk to the rest of the cast. I think it is in the best interest of the industry to keep testing for it.
      Having said that I am against this measure. Still, you have a couple of things going for the industry. 1) They can move. 2) The Ninth Circuit is the most overturned of all the circuits and if Anita Hill was right, they have a friend in Justice Thomas. 😉

      1. Paul: I was unclear: Straight performers are not allowed to work if they are HIV positive; gay performers are a whole other story—it’s almost as if they are a different industry. And yes, several production companies have already moved to Nevada; more will follow if the Health Department tries to put Measure B into effect. And it wouldn’t surprise me if several Supreme Court justices look at porn in their free time—secretly, of course.

  3. Paul: “Racist”? I am just rapping about rubbers. Smaller rubbers for the midget from North Korea who is messing with Sony. Ah, that might be your point. Picking on the midget is racist is it? I will admit that it is anti communist. I am a right winger. If you are of a Lefty persuasion then I am sorry to have offended you.

    Dogs have no shame. We have a religion and abide by it. We give guidance to you humans when you need it. You do not have to be half blind to ask a dog which way the outhouse is.

  4. The problem is there have been some major outbreaks of HIV in the porn industry. Since it is an industry where people work with everybody else, it makes the spread especially easy. Continual testing does go on, but it has not prevented these outbreaks.
    However, from a money-making industry, films where the stars are not wearing condoms are more popular than when they do. What will happen is the porn industry will just move. Nevada and Arizona are close and have the available weather. Arizona is right-to-work, so there is that.

  5. I am not sure which Prong of the First Amendment which would suit this argument best. If I was in favor of no condom use I would Take The Ninth and assert a right of privacy. This could get real nasty and some agitators could march on the Capital Square and Petition their government for redress of grievances and exhibit their condoms in various ways. Then you have the gay rights aspect which some would say has a different angle or “bent” on the prong of the First Amendment.

    If the North Koreans become involved then we can talk about smaller rubbers for land lubbers and all that.

  6. BFM, Mark Kernes is a porn journalist who comments here. I’ll contact him and ask him to answer your question and provide us w/ his take on this decision.

  7. Perhaps we should just give over the job of ruling on constitutional maters to the CDC.

  8. Any body have any idea what the STD rate is in LA porn. Would an STD rate roughly equal to the general population, adjusted for demographics, undercut the compelling state interest argument?

  9. How would the court have ruled on an LA county ordinance that required everyone in a motion picture or television program produced in Hollywood to be seen wearing a seat belt when in a car? A bicycle helmet when riding a bike? Perhaps an ordinance banning smoking in all filmed entertainment?

    If abridgement of free speech can be allowed when there is a “substantial government interest” in a narrowly tailored laws prohibiting freedom of expression, what keeps this legal precedent from expanding into other forms of speech?

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