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Free Speech Rights Won't Protect Porn Producers From Condom Law

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By William Peacock, Esq. on December 16, 2014 9:46 AM

In 2012, Los Angeles voters passed an initiative requiring adult film performers to wear condoms while filming. This, predictably, drew the ire of porn studios, producers, and stars, all of whom had adhered to a biweekly STD testing protocol to address concerns about the health risks of unprotected sex.

The artists' and studios' main argument was a creative one: a First Amendment free speech right to have condom-free sex on camera. This argument failed at the district court level and again yesterday, with the Ninth Circuit holding that any incidental effects on expression were outweighed by the evils the law was meant to address -- sexually transmitted disease transmission.

A Partial Preliminary Victory for Both Sides

The Safer Sex in the Adult Film Industry Act (Measure B on the L.A. County ballot in 2012) imposed a number of requirements on the adult film industry, some more onerous than others. Last year, a district court judge struck down a number of the measure's provisions, such as one that allowed warrantless searches ("surprise inspections") of film sets and studios, but upheld the condom requirement.

A Primer on Intervenor Standing

Vivid Entertainment appealed to the Ninth Circuit, seeking to have the entirety of Measure B blocked. The Los Angeles County Department of Public Health declined to defend Measure B, stating that it took a "position of neutrality" as to the ordinance's constitutionality. Instead, the private party proponents of the law (a collection of individuals and The Campaign Committee Yes on Measure B) were allowed to intervene and defend the law.

If this is ringing your Hollingsworth v. Perry bells (the gay marriage case where the U.S. Supreme Court held that third parties could not intervene and defend California's gay marriage ban, which was also passed via an initiative), you get a cookie. That's all you get, however, because as the Ninth Circuit's opinion explains, the High Court's opinion held that third parties couldn't take actions that trigger a court's jurisdiction (such as appealing a decision). But Vivid appealed here -- they triggered jurisdiction. The interveners, therefore, can jump in and defend the law if the district court allows.

Free Speech Fails

Is a condom mandate a violation of the industry participants' right to freely express themselves? The Ninth Circuit panel was skeptical, and held that even if it did impinge on their expression, the law survives intermediate scrutiny.

"The condom mandate 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 concluded.

The holding was further supported by a 2000 Supreme Court decision involving strippers forced to wear pasties and G-strings while performing. The Court held that the requirement did not violate the dancers' First Amendment rights.

"The requirement that actors in adult films wear condoms while engaging in sexual intercourse might have 'some minimal effect' on a film's erotic message, but that effect is certainly no greater than the effect of pasties and G-strings on the erotic message of nude dancing," Judge Graber reasoned.

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