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 News, Matthew Heller examines the latest chapter in latex fetishist Michael Weinstein’s battle to criminalize porn production
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.