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Porn Condom Law Unconstitutional, Says Scholar Antonio M. Haynes

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Tue, Nov 13, 2012 at 7:03 AM
click to enlarge Porn's Jenna Haze. - VIDEOGAMEVISIONARY.COM
  • videogamevisionary.com
  • Porn's Jenna Haze.

Measure B, the L.A. county initiative that passed last week with nearly 56 percent approval, is all about worker safety in adult video, say its backers.

But some folks, including porn industry leaders, say the requirement to use prophylactics in porn is a restriction on free speech.

Some lawyers seem to concur:

Antonio M. Haynes, a Cornell Law School visiting fellow, writes at Justia's Verdict blog that measure B wouldn't appear to hold up to a constitutional challenge.

He argues that speech can only be curtailed when "justified by a compelling government interest and is narrowly tailored to serve that interest."

In the case of potential STDs, he opines, there's not enough there: For the most part industry performers are tested monthly and even twice-a-month and arguably have more knowledge of their partners' health than random people hooking up at a bar:

Certainly, rates of infection appear to be smaller in the adult film industry than in the population at large, apparently due to industry self-regulation.

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.

click to enlarge Pornfolk. - NATE 'IGOR' SMITH
  • Nate 'Igor' Smith
  • Pornfolk.

The AIDS Healthcare Foundation, which spearheaded measure B, refutes the argument, however, noting that a recent study found that more than 1 in 4 performers in a small pool of porn stars examined (168) tested positive for "gonorrhea and/or chlamydia."

In any case, Haynes maintains that any such evidence is not enough, that "it could not" withstand a constitutional challenge because "the imposition of civil and criminal penalties depends solely on the content of the adult film at issue."

He also argues that we wouldn't pass such a law for the general public:

Human interactions, particularly sexual ones, are filled with risks, whether emotional or physical. To deprive single individuals of the ability to navigate these risks on the same terms as married individuals would be a denial of the single individuals' dignity.

The industry lobbying group known as the Free Speech Coalition, saying that "we believe that the law is ... unconstitutional on the grounds of forced expression," has promised a lawsuit.

We'll be watching.

[@dennisjromero / djromero@laweekly.com / @LAWeeklyNews]

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