Condoms & The First Amendment…

Los Angeles County’s Measure B, the “Condoms in Porn” law, has caused much discussion in the media as well as the industry as to whether such a mandate is a violation of a performer and producer’s First Amendment free speech rights. Whether it is a violation of the U.S. Constitution will be left to the courts to decide. It is, without question, a law that can be challenged. The United States’ Constitution is the supreme law of the land. Which means no other law can violate the rights guaranteed by the Constitution – not even workers’ safety laws.

In regulating commercial speech the government has to show that condom law passes what is known as the Central Hudson test ( Please see: http://itlaw.wikia.com/wiki/Commercial_speech ). In regards to free speech and pornography, the United States’ Supreme Court has indeed ruled that hardcore pornography is legal and in fact is protected by the First Amendment and therefore entitled to protection under the Constitution ( Please see: http://en.wikipedia.org/wiki/Miller_v._California ).

Many have also questioned who holds such free speech rights – the producers or the performers ? The answer is that both producers and performers hold equal rights in that regard. Performers, like dancers in gentlemen’s clubs, do in fact express themselves while performing in an adult scene or movie. There are several U.S. Supreme Court decisions that hold a dancer’s nude dancing is in fact expressive free speech. ( Please see: http://en.wikipedia.org/wiki/Barnes_v._Glen_Theatre,_Inc. )

Can Free Speech Be Restricted ?

Commercial free speech can be regulated. There are two types of restrictions on commercial free speech, content and non-content based restrictions. An example of content based restriction would be a law that prohibited a newspaper from publishing the name of a rape victim. An example of a non-content based restriction would be zoning laws regulating the time, manner and place a business owner could operate a gentlemen’s club within a city or county. Content based restrictions require the court to impose a “strict scrutiny” test, meaning that the law has to promote a compelling governmental interest and it has to do so in the least restrictive means possible. For non-content based restrictions the court will used what is called “intermediate scrutiny,” meaning the law has to promote a significant, substantial or important government interest and it must be done in a way that is narrowly tailored to the governmental interest. Under intermediate scrutiny there are basically two tests the court uses 1) time, place and manner and 2) incidental, which means regulations that are aimed at conduct that is not speech but do infringe on speech.

A government mandated condom law would be a regulation that is not aimed at actual speech but rather conduct however it does infringe on the free speech rights of the producers and performers. In U.S. Supreme Court cases that have primarily been focused on gentlemen’s clubs, those looking to restrict nude dancing have used the argument that regulations imposed on them are merely trying to alleviate the “secondary effects” that gentlemen’s clubs supposedly cause such as crime, prostitution and blight on the neighborhood they are located in. I imagine that the government may also try to use a secondary effects argument in favor of the condom law, if it were ever to be challenged. I believe that they will claim that condoms in porn will protect the health of the general public since members of the adult industry will spread disease to those in the general public. Whether this argument will work is unknown.

None the less, a government mandated condom law is a restriction of free speech of both performers and producers. Since it is not content based, if challenged in court, it would receive intermediate scrutiny and the court would examine whether the government has a significant, substantial or important governmental interest and whether the law is narrowly tailored to those goals.

Therefore the question will be is the health and safety of workers in the adult industry a significant, substantial or important governmental interest. And if so, is the condom law narrowly tailored to promoting that goal. In other words does the law restrict the least possible amount of speech to accomplish the goal of protecting adult industry workers.

More than likely the courts will find that the health and safety of adult performers are an important governmental interest. The argument on behalf of the industry would probably be that STI testing achieves the same goal of the condom mandate without restricting any speech.

The industry could also make the argument that only the state of California has the ability to regulate workplace safety and therefore the law exceeds the power of Los Angeles County or any city that adopts a similar law such as the City of Los Angeles Safer Sex in Adult Films Ordinance.

In the coming weeks I will be writing more on this subject. However, if you are interested in this issue I suggest that you do some research and educate yourself. Especially if you are a producer or performer in the industry. You might be interviewed by someone in the media in the coming weeks as Election Day approaches.

A good starting primer on First Amendment issues is attached to this article. It was written by an attorney for the Congressional Research Service in October 2009. It basically states how the government can regulate free speech and how it needs to go about doing it. Its an inside look inside their “playbook.”

FreeSpeechPrimer

 

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5 thoughts on “Condoms & The First Amendment…

  1. Ive been shooting condom only scenes for a while now. Even though performers get tested regularly and more so than regular people it’s still not worth the risk. I was limited on the guys I could shoot when I switched to condom only because they admitted to never using condoms not even in their personal life. Of all the male talent only 3 could perform with a condom with no problem. The real reason why they don’t want the condom law is because companies are afraid that the consumer will think the porn isn’t nasty enough to fulfill their fantasy. Just like in most movies when their is a sex scene the couple just get straight to the sex rarely do they stop to get a condom. Also companies ate very aware that most male performers do not perform well with condoms but what’s the point of being a professional if u can’t have mind control over your penis. At the end of the day it’s all in their head they just don’t want to use a condom so that’s why they aren’t performing up to standards. Overall I don’t want to see anyone lose any money or go out of business but I don’t want to see anyone hurt either. Sometimes when you are a part of a world where everyone is living a certain lifestyle you go with the flow and think certain things are ok when it’s not. Yes they are many who believe
    that it’s an individual choice and right but sometimes the higher being/law should step in and make the better decision for everyone because people won’t do it on their own. Personally I had never in my life caught an std of any kind until having unprotected sex in the industry. Most performers are really hush hush about it and won’t admit it but it’s very common. We have only been blessed to have only contracted stds that can be cured and not HIV/aids thank GOD. I am std free and have been for a very very long time but whose to say if I would if I had continued to work in the industry not using condoms. Sorry if I offended anyone with my comment I hope you take what I’m saying into consideration ONE LOVE
    Sarah Mirabelli aka PinkyXXX aka I AM LOVE

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  2. This isn’t government action, this is the action of a special interest group which is using pandering politicians. This crusade was spurred on entirely by Michael Weinstein of AHF.

    NO amount of testing or ongoing education will ever satisfy Weinstein. In fact, testing is anathema to AHF’s condom-centric worldview. This is because AIDS Inc. profits from fear — the unfounded fear that everyone, regardless of age, race, gender or sexual preference, is at similar risk of contracted HIV/AIDS. Less fear means less funding.

    To Michael Weinstein, mandatory condoms in porn mean universal, permanent product placement for AIDS fear and hysteria. This has nothing to do with worker safety; this has to do with turning a segment of the entertainment industry into a propaganda arm of AIDS Inc.

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  3. I’m glad to see that this topic is finally being at least “discussed” and/or being taken seriously by people who understand the the full weight of such a government intervention. If we don’t discuss, distribute, post, and or share this information to at least start the discussion amongst industry producers/performers, I honestly believe that the silence of the same will result in more aggressive actions on the part of the government to impose their will in reference to this matter. It’s my opinion that if this industry doesn’t develop a sense of urgency by creating a more sound system of testing/on-going eduction & monitoring on it’s own, it’s just like bending over,opening a door, and telling these activist groups & the courts to “take me, take me raw…uhhh I mean with a condom”.

    Much Love.

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  4. I struggled with strict vs. intermediate scrutiny when I wrote this article. I definitely see your point. I just analogized it to the pasty/g-string line of cases. But the compelled speech is an interesting argument that I saw but didnt necessarily analogize to porn with condoms but now I see you point more clearly. I dont disagree with you. I am just not sure that I 100% agree.

    Since I am against mandated condoms, at any level, I sincerely hope you are correct and I am wrong. It will be much harder for any condom regulation to withstand a court’s strict scrutiny test.

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  5. Michael, I disagree with part of your analysis.

    The condom law(s) would have to satisfy struct scrutiny, because they constitute “compelled speech.”

    As our friend Allan Gelbard, Esq. told the City of LA “Working Group” on condoms (we were both there that day, as well):

    This is clearly a content-based restriction on speech, and such restrictions require the government to prove their law satisfies strict scrutiny, which this one cannot.

    This ordinance compels the speaker to include safe sex practices in their film, which, while perhaps a laudable goal, and which may be the actual political goal of the main proponent of the statute, nevertheless constitutes compelled speech. Such governmental acts violate the rights of freedom of expression, both of the producers of the films, and the actors who appear in them.

    In the 1988 case of Riley v National Federation of the Blind of North Carolina (487 US 781, 790-91), the US Supreme Court stated, “The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it.”

    In 2000 in Garawan Farming v. Lyons (24 Cal.4th 468), the California Supreme Court stated that the First Amendment fully protects “idealogical speech” which it defined as including “philosophical,” “social,” “artistic,” “literary,” “ethical,” and similar matters…” Justice Mosk continued, “The right in question is put at risk both by prohibiting a speaker from saying what he otherwise would say and also by compelling him to say what he otherwise would not say.”

    Forcing adult production companies to require their performers to use condoms violates the rights of all the participants who wish to convey a different message. All the rhetoric aside, this is undeniable.

    In 1994, in Turner Broad. Sys. v. FCC (512 U.S. 622, 641-42), Justice Kennedy writing for the Court said, “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right.”

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