A 2012 ballot initiative requiring adult film stars to wear condoms while filming sex scenes survived a constitutional challenge this week, when the U.S. Court of Appeals for the Ninth Circuit disqualified a pornography company’s argument that the measure violated its First Amendment rights. That means porn stars in Los Angeles County will be required to depict safe sex, at least for now.
“The condom mandate [which] has only a de minimus effect on expression, is narrowly tailored to achieve the substantial government interest of reducing the rate of sexually transmitted infections, and leaves open adequate alternative means of expression,” Circuit Judge Susan Graber wrote in her opinion about the challenge brought on by adult film company Vivid Entertainment, LLC.
The mandate, known as Measure B, requires producers of pornography to take a blood-borne pathogen training course, post a sign on set, and enforce condom use for anal and vaginal sex. In the years prior to the passage of the ballot initiative, adult film companies required that actors test for sexually transmitted diseases every 28 days. Compulsory condom use, however, remained mostly relegated to those who performed in gay sex scenes.
Since the passage of Measure B, adult film companies have remained relentless in their pursuit of free speech, taking their business to neighboring areas like Las Vegas. Members of Free Speech Coalition, a trade group that supports the porn industry, said that adult film companies have submitted fewer than 30 permits this year — a far cry from the nearly 500 that are usually filled out annually — for production in Los Angeles County.
Some porn stars themselves have also spoken out against the ballot initiative, expressing concerns about the marketability of safe sex in hardcore porn and the irritability of latex during the filming of extended sex scenes.
Measure B’s proponents, however, say that adult film stars’ safety should take priority over production companies’ freedom of expression, especially in light of a 2013 study in the Journal of Sexually Transmitted Diseases that found that nearly one-third of 168 adult film actors who took part in a research project had a previously undiagnosed sexually transmitted disease.
The contentious issue got renewed traction last year when two adult film stars — Cameron Bay and Rod Daily — tested positive for HIV, prompting studios to cease production temporarily. Weeks after their diagnoses, Bay and Daily called on the adult film industry to create safeguards that protects its employees, many of whom say they often feel pressured to perform sex scenes unprotected out of fear of being replaced in an industry that rakes in $11 billion worldwide, even with the threat of piracy.
“Condoms in porn is not really that crazy a thing,” Daily, who has also performed in gay porn, said at the time. “Ultimately, it’s just a big industry, and their main concern is money. If they do care that much about the performers, they would use condoms.”
That wasn’t the first time the porn industry has dealt with this issue. In 2004, some producers briefly adopted condom use on their sets after an HIV outbreak. A syphilis outbreak in 2012 — which porn star Mr. Marcus later admitted starting — also caused a 10-day moratorium on production.
Porn producers, however, said those outbreaks shouldn’t cause concern, pointing to the monthly testing that adult film actors undergo. After the HIV scare in 2012, the Free Speech Coalition announced that it would mandate testing every 14 days instead of 28. Voters were not convinced, however, and Measure B passed with nearly 56 percent of the vote.
The ensuing legal challenge to the measure hasn’t gone as well as porn industry leaders would have wanted. In a statement to the press earlier this week, Free Speech Coalition’s CEO Diane Duke decried the Ninth Circuit’s decision, alluding to lingering questions about privacy that could resurface in future challenges.
“While this intermediate decision allows that condoms may be mandated, it doesn’t mean they should be,” Diane Duke, CEO of the Free Speech Coalition, said in a statement to the press. “We have spent the last two years fighting for the right of adult performers to make their own decisions about their bodies, and against the stigma against adult-film performers embodied in the statute. Rather than protect adult performers, a condom mandate pushes a legal industry underground where workers are less safe. This is terrible policy that has been defeated in other legislative venues.”
Though previous research examining causal relationships between consumption of pornography and unprotected sex among adolescents have remained inconclusive, supporters of Measure B are celebrating the latest court decision, which they say has reaffirmed that only a vocal few have qualms about Measure B.
Michael Weinstein, the president of the AIDS Healthcare Foundation, said during a teleconference that the 9th Circuit’s ruling is a “total vindication” of AHF’s position on the issue. “We’ve been having this discussion for years. Now it’s a question of enforcement,” he said. “I think one of the most important things the court did today is they said it’s clearly a public health interest.”