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Last Tuesday, Los Angeles County voters approved Local Measure B, also known as the “Safer Sex in the Adult Film Industry Act,” covering the adult film industry with another layer of regulation. The measure follows similar regulations enacted by the City of Los Angeles earlier in 2012 by requiring actors in adult films produced within the county to wear condoms while filming scenes of vaginal or anal intercourse. Advocates of the law celebrated the extension of basic principles of workplace safety to the pornography film set. Opponents, including actors and producers in the industry, decried the regulation as an infringement on equally fundamental rights of artistic expression.
The AIDS Healthcare Foundation and other advocates of regulation framed the Safer Sex Act as a response to worker safety and general public health issues, comparing the regulations to similar inspection regimes that apply to tattoo parlors, hair and nail salons, and restaurants. Citing a study showing that L.A.’s adult film performers had higher rates of STD infection than legal prostitutes in Nevada, Measure B’s boosters supported similar regulations to protect the health of the actors in the porn industry.
The Free Speech Coalition, an adult entertainment industry trade group, challenged the methods and findings of the study and argued that self-regulation was already protecting performers from STDs. Figures advanced by the adult film industry suggest that there have been no documented cases of HIV-transmission in L.A.’s pornography industry since 2004. Although the California Department of Public Health documented 6,447 new cases of HIV infection in Los Angeles County over a recent three-year period, only two of those cases involved adult film actors, and neither of those infections were traced to on-set activities. A recent syphilis outbreak stopped filming in the area in August and provided some motivation for additional regulation, but industry groups argue that the testing regime already in place adequately protects performers and the public.
Those same industry groups are preparing a First Amendment challenge to the law, focusing on the regulation as restriction on adult film artists’ freedom of expression. While almost any regulation connected to health or worker safety might pass rational basis scrutiny, if a court finds that this ordinance targets expression based on content, it could face stricter scrutiny. A regulation such as this one that covers some forms of intercourse while exempting others may reasonably be characterized as a regulation of content, in which case the debate over the actual health risks addressed might determine whether this ban impermissibly abridges these filmmakers’ freedom of expression. It is difficult to discern where a court could reasonably draw a line to find a tight fit between selective condom requirements and diseases that can be spread both by the forms of intercourse covered under the new law and those outside its reach. It is also notable that this regulation, in contrast to the New York soda ban that drew “nanny state” comparisons, uses government authority to impose majority preferences on a small and politically unpopular group.
In addition to arguing that the condom-mandate abridged the free-speech rights of an industry based on selling “fantasy,” actors and producers expressed economic concerns about competing with unregulated foreign producers and amateurs. Moreover, there is serious concern that producers will simply move production–either outside county lines or underground–thereby avoiding regulation. Nearby cities also seem to have considered the spillover potential of Los Angeles’s legislation. Nearby Simi Valley passed its own legislation requiring condoms on adult film sets in April. While the current Los Angeles regulations involve permitting and on-site inspections by county officials, Simi Valley’s approach to enforcement appears to require producers to send unedited copies of their films to the local police department for review.
While the practical effect and the enforcement mechanisms for the law remain in doubt, the conflict between health and safety regulation and artistic expression raise serious questions. What’s your answer?
–Jeffrey W. Sheehan
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