Condoms Do Not Muzzle Free Speech, U.S. Court Rules
L.A. Weekly file photo
UPDATE at 4:45 p.m. Monday, Dec. 15: Groups on both sides of the issue have responded to the decision. See more below.
Unless an appeal is forthcoming, it would appear that the epic battle that the porn industry has waged against a mandatory condom in Los Angeles County is over.
The U.S. Court of Appeals for the Ninth Circuit ruled today that Measure B, approved by county voters in 2012, does not violate the freedom of speech of adult filmmakers by requiring male performers to wear condoms. The court thus denied the main claim made by plaintiffs, which include Vivid Entertainment, Califa Productions and adult performers Kayden Kross and Logan Pierce.
" ... The condom mandate survived intermediate scrutiny because it was only a de minimis effect on expression, was narrowly tailored to achieve the substantial governmental interest of reducing the rate of sexually transmitted infections, and left open adequate alternative means of expression," the three-judge panel stated.
The court also approved other aspects of Measure B:
The panel further held that Measure B’s requirements that adult film producers complete training about blood-borne pathogens and post a permit during shooting served the County’s interest in preventing sexually transmitted infections.
Last year U.S. District Court Judge Dean D. Pregerson struck down other portions of that law, including stricter permitting, random fees, and warrantless searches (or surprise inspections) of adult video sets. The Ninth Circuit did not overturn those provisions.
The judges said that while "plaintiffs’ argument presupposes that their relevant expression for First Amendment purposes is the depiction of condomless sex ... the relevant expression is more generally the adult films’ erotic message."
In other words, the court ruled that pornographers can convey their message without having to go condom-free.
The industry has long said that consumers don't want to see condomless porn and that forcing it upon video-makers will only push adult video out-of-state and underground, where it would be less safe.
In the L.A. area major adult video companies and the porn stars they employ generally adhere to a voluntary, twice-a-month STD-testing protocol that the industry says works.
The condom mandate is the brainchild of the L.A.-based AIDS Healthcare Foundation, which argues that federal law says employees shouldn't be exposed to blood-borne pathogens at work, which is pretty much true.
In fact, the California Division of Occupational Safety and Health (Cal/OSHA) interprets federal law similarly and says condoms are required on-set regardless of what L.A. County voters declared with Measure B.
Still, the AHF is now trying to take mandatory condoms statewide with a ballot initiative that would expressly require prophylactics in porn production.
So does that mean this case is over? Not necessarily. It's still possible that the plaintiffs could ask for an "en banc" review before the entire Ninth Circuit or even eventually appeal it to the U.S. Supreme Court.
We reached out to both the AHF and the industry's Free Speech Coalition for comment but had yet to hear back. A representative for porn-maker Vivid said the coalition would be speaking for it regarding the ruling.
UPDATE at 4:45 p.m. Monday, Dec. 15: Responses from both the Free Speech Coalition and the AIDS Healthcare Foundation have come in.
The FSC sees the decision "not a ruling on the constitutionality of Measure B" but as one in which condoms can be mandated while some of the rest of the initiative remains struck down.
Diane Duke, CEO of the group:
While this intermediate decision allows that condoms may be mandated, it doesn't mean they should be. We have spent the last two years fighting for the rights of adult performers to make their own decisions about heir 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 terrible policy that has been defeated in other legislative avenues.
AHF President Michael Weinstein:
Today’s decision affirms the rights of adult film performers to enjoy the same workplace protections as the rest of us. We thank the performers who courageously shared their stories with the world while suffering abuse and ridicule by the porn industry—the same industry they made money for—who sought to discredit them and shut them up. Should Vivid Entertainment and other porn producers decide to appeal the decision and bring their misguided case before the U.S. Supreme Court, we welcome the challenge for the courts to rule once again in favor of worker safety and show how the porn industry cares more about their bottom line than their workers.
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