Law Requiring Condoms On Adult Movie Sets Faces Key Court Test

Mar 13, 2014
Adult Business News
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A key court test for Measure B

Could a federal appeals court put a wrap on Measure B, a law requiring condom use on all adult film sets in Los Angeles County?

At MintPress NewsMatthew Heller examines the latest chapter in latex fetishist Michael Weinstein’s battle to criminalize porn production

In the Nov. 6, 2012 general election, Los Angeles County voters approved Measure B, which requires performers to use condoms when filming sex scenes. (AP Photo)

In the Nov. 6, 2012 general election, Los Angeles County voters approved Measure B, which requires performers to use condoms when filming sex scenes. (AP Photo)

LOS ANGELES — Southern California’s association with the adult film industry has created thousands of local jobs, generated millions of dollars in film production permit revenue for local governments and earned the San Fernando Valley the monikers “Porn Valley” and “Silicone Valley.”

In November 2012, that relationship suffered a stinging blow when Los Angeles County voters passed Measure B, also known as the Safer Sex in the Adult Film Industry Act, which requires the use of condoms in all adult films made locally. The AIDS Healthcare Foundation promoted it as a workplace safety law designed to curb the spread of sexually transmitted disease.

The law also requires adult filmmakers to complete bloodborne pathogen training as a condition for obtaining a public health permit to make films and authorizes the county to permanently revoke permits.

Since Measure B was passed, according to the porn industry trade group Free Speech Coalition, film production permits in Los Angeles County have dropped 95 percent, costing the county an estimated $450,000 in revenues, and adult film production companies have taken their business to neighboring counties and Las Vegas, Nev.

Now the fate of Measure B — and, possibly, the $6 billion California porn industry — is in the hands of a federal appeals court.

Forced Speech and A Key Court Test

In January 2013, Vivid Entertainment, the industry’s largest production company, and performers Kayden Kross and Logan Pierce sued the county health department, alleging that Measure B imposed “an intolerable burden” on the constitutionally-protected expression of adult film performers.

Condoms are a reminder of “real world-concerns” such as pregnancy and disease, and mandating their use in adult films detracts from the escapism of those films, the plaintiffs have argued.

The lawsuit also said the industry’s self-screening for STDs — performers are subjected to monthly testing — “virtually eliminates the possibility of HIV transmission” and Measure B’s supporters had not demonstrated that condom-free adult film production promotes the spread of sexually transmitted infections.

In August, a federal judge struck down some parts of the law but left intact the provision on condom use, finding that because there was evidence indicating that STD testing may be ineffective, “requiring condoms is a permissible way (at least at this stage) to target and prevent the spread of STIs.”

A government regulation affecting free speech may be constitutional if it materially advances a legitimate governmental interest.

Vivid and its co-plaintiffs appealed that decision and, at a hearing last week, their attorney argued that U.S. District Judge Dean D. Pregerson “should have enjoined Measure B in its totality and not just pieces of it.”

“There’s no demonstration whatsoever that Measure B will have a positive impact,” Robert Corn-Revere, a First Amendment expert, told a three-judge panel of the 9th U.S. Circuit Court of Appeals.

Tom Freeman, an attorney for the AIDS Healthcare Foundation, insisted the foundation had demonstrated a connection between sex without condoms and the spread of disease within the adult film workplace, citing a 2009 report in which the director of the county’s health department said screening alone is “insufficient to prevent STDs and HIV/AIDS.”

But Chief Judge Alex Kozinski questioned how Measure B could promote the government’s interest in workplace safety and STD prevention when porn producers can simply go to “Ventura or to Orange County or to San Bernardino or Riverside.”

“Why wouldn’t common sense tell you that this is ineffective because they’ll just take it across county lines?” he asked Freeman.

Read more…

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L.A. Law Requiring Condoms On Adult Movie Sets Faces Key Court Test | The Rob Black Website
6 years ago

[…] L.A. Law Requiring Condoms On Adult Movie Sets Faces Key Court Test […]

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[…] Since Measure B was passed, according to the porn industry trade group Free Speech Coalition, film …read more     […]

Ernest Greene
Ernest Greene
6 years ago

Federal judges tend to ask the tough questions and rule by the precedents of federal law, and given the direction federal law has taken in recent years away from regulating sexual behavior between consenting adults I’d say it’s going to be tough sledding for AHF at that altitude.

Deep Throat
Deep Throat
6 years ago
Reply to  Ernest Greene

Weinstein/AHF is banking on panicked cries of “public health!” to do the job — essentially carving out a public health exception to the bill of rights. Weinstein doesn’t even see it as a balancing act; to him, “public health” (by definition, a politics-based term — certainly more politics than medicine, as we’ve seen) TRUMPS constitutionally protected rights and liberties.

Ernest Greene
Ernest Greene
6 years ago
Reply to  Deep Throat

No doubt. But standards of proof are higher in federal court and federal judges are loath to expand the authority of local government agencies acting in conflict with federal law. We’ve seen this happen in a number of cases involving same-sex marriage and abortion restrictions just recently. It could go one way or the other, but I don’t think I’d want AHF’s odds, especially in a case where both sides have come under hostile scrutiny from the media. AHF really had the press in its back pocket until recently, but that last L.A. Times piece in which Yaroslavsky called Weinstein… Read more »

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[…] also argued that until the 9th Circuit’s decision in the Measure B case is rendered, no similar legislation should be made on a state level because a ruling that mandatory […]

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