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.”