Friday, November 16, 2012

First Amendment Right to Condom-less Porn? - COTW #118

Los Angeles voters recently passed the Safer Sex in the Adult Film Industry Act, which mandates condom use on adult film sets. Porn rights as the employment law case of the week!? Hey, porn stars make a living off of this, so I say it's fair game!

I had constitutional concerns the moment I heard about this law, and apparently I'm not the only one. Antonio Haynes has some nice analysis over at Justia's Verdict: Condoms and Content-Based Discrimination.

Government restrictions on the content of films are generally frowned upon. I know, I know - people will argue that this isn't about restricting the artistic expression of porn producers, it's about public health. There are problems with that argument though. As Haynes points out:
Since 2004, more than 350,000 sex scenes have been shot without condoms, and there has not been a single instance of HIV transmission on set . . . . But even if we assume that STD transmission on adult film sets is an "actual problem," it is unclear whether the Act is narrowly tailored. Narrow tailoring requires that no more speech that is necessary be curtailed. In this instance, the Act makes subject to civil and criminal penalties all sexual speech in which a condom is not used. A required testing regime, much like the one the industry has imposed on itself, would achieve the same ends without curtailing any speech.
There also might be an equal protection problem. After all, does anybody doubt that risky sexual encounters are taking place all over Los Angeles that have nothing to do with the porn industry? If this law isn't about restricting the speech rights of pornmakers, then why doesn't it apply to people having unprotected sex off-camera? In fact, as Haynes notes, many off-camera encounters are even riskier than filming porn because people rarely demand STD test results prior to sexual encounters; whereas, demanding results is standard in the porn industry.

I am not aware of any actual lawsuits yet, but I suspect they're coming. I also anticipate that they will be successful, but only time will tell.