By Darren Smith, Weekend Contributor
We 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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