The First Amendment protects many things, but not your right to condom-free porn. After years of back-and-forth, three judges from the U.S. Court of Appeals for the 9th Circuit ruled this week that requiring condoms does not “violate the industry’s First Amendment rights of free expression." So, all adult actors will be required to use condoms. While it might sound like a basic safety measure, the law has been attacked by everyone from porn stars to free-speech advocates.
In 2012, 56% of L.A. voters approved Measure B, requiring condoms in all porn scenes including vaginal and/or anal sex. The law went through several rounds of appeals before Monday's decision. It's worth noting that porn is an estimated $13 billion a year industry, and the majority of it films in L.A.
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Porn star James Deen has been an outspoken critic of the law. “It’s irritating that we’re still fighting sexual stigma as a culture, that people with no insight or knowledge about how the adult industry works would make these decisions for us,” Deen told us. “If people would think of us less as hookers with cameras in front of us and more as entertainers, people would see this a lot more clearly."
He also points out that the industry is safe and getting safer. "Remember that within the industry we haven’t had a single [heterosexual performer-to-performer] transmission of HIV in more than 10 years — safety protocols have only gotten better and stricter.”
Those stats are technically correct, but the overall safety of the industry is a matter of debate. Last year, the entire porn industry shut down after several performers tested positive for HIV, though the porn industry lobby maintains those infections happened off-set or only in male-on-male scenes. According to the AIDS Healthcare Foundation, porn actors are 10 times more likely to contract an STI than the public at large.
Opponents of the condom law argue that it will just push the porn industry outside of L.A. — and that it will end up less regulated and less safe. “The industry will spread out, operating under the [state’s] standards instead of industry standards. [The measure] can only harm; it doesn't help,” Deen says. His prediction seems to be coming true: Since the condom law first started to come into play in 2012, the number of permits granted to shoot in Los Angeles county has plummeted, with 90% fewer permits requested. Diane Duke, the CEO of the Free Speech Coalition, also denounced the ruling on the Coalition’s blog: “We have spent the last two years fighting for the right of adult performers to make their own decisions about their bodies," she said. "Rather than protect adult performers, a condom mandate pushes a legal industry underground, where workers are less safe.”
The industry also claims the measure inhibits filmmakers’ creative expression; it could prevent them from accurately portraying their vision of a fantasy world of carefree, condomless sex. Of course, the appeals court didn’t agree, stating that “films depicting condomless sex convey a particular message about sex in a world without [the risks of pregnancy and disease]... Whichever unique message plaintiffs might intend to convey by depicting condomless sex, it is unlikely that the viewers of adult films will understand that message."
The plaintiffs in the case are still “considering their options” on further measures to challenge the ruling.