Image by Timothy Takamoto

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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4 Responses to Lights, Camera, Condoms! L.A. Mandates Safer Cinematic Sex

  1. CLA says:

    Interesting read. You cast this as a “conflict between health and safety regulation and artistic expression,” which I thought was interesting, considering many would say these films have minimal social/artistic value. I do think that if this is enforced seriously, porn will move out of the valley. This is going to hurt the already-embattled industry which is dealing with major competition from internet piracy.

  2. Jeremy Gove says:

    Condoms as a form of artistic expression? Unedited copies of pornos to do a condom check in Simi Valley? This sounds like an episode of a sit com. While this could be viewed as an infringement of artistic expression I don’t know if a court would view it that way when the law targets the small community of adult entertainment. It is also possible that because it is a county ordinance filming move outside the county if the actors find this to be such an infringement of their right to expression.

  3. KM says:

    Interesting post, Jeffrey. The Simi Valley practice of having producers send unedited copies of their films to the police department for review sounds like it might make the days a little more interesting at the local police stations. It seems to me that the measure unnecessarily targets a politically unpopular group. The adult film industry already has monthly testing requirements, which far exceed the frequency with which the average sexually active adult is tested for STDs. However, the activity at issue seems like conduct to me, and the measure seems likely to pass rational basis review.

  4. Colton Cline says:

    Very interesting article. As safer sex is encouraged in media, it makes me wonder about the public sentiment regarding the legalization of prostitution will evolve. Countries like New Zealand that have liberal prostitution laws have seen rates of infection plummet, along with some unexpected results including decline in sexual assaults and abuse. Here is an interesting article on the matter: