Two porn companies and a couple of adult film actors faced an enormous setback Monday in their fight against a Los Angeles law that requires adult movie actors to wear condoms.
Those porn makers had argued that Measure B, also known as the "condoms in porn" law, violated their right to free speech under the First Amendment. But a federal appeals court rejected that argument and refused to enjoin the law — or stop it from being implemented — while the porn companies' lawsuit is pending. This doesn't bode well for their efforts to overturn the law.
Voters approved Measure B in 2012, which in addition to requiring condoms also creates a system that requires porn makers to get permits and undergo periodic inspections to ensure actors are wearing those condoms. LA County officials complained after it passed that the law established a whole new bureaucracy, as the Los Angeles Times reported at the time.
The porn industry complained, too. In their lawsuit opposing the law, the porn companies Vivid Entertainment and Califa Productions Inc. and porn actors Kayden Kross and Logan Pierce say Measure B violated the First Amendment because it created "prior restraint" on their ability to "create expression."
The plaintiffs here say the law interferes with their ability to depict sex in a carefree world in which people don't have to worry about pregnancy and STDs. From the appeals court opinion on the case:
Plaintiffs submitted declarations stating that condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease. Under this view, films depicting condomless sex convey a particular message about sex in a world without those risks.
The appeals court, however, ruled that Measure B has only a minimal effect on the film's erotic message, and that the government has a substantial interest in preventing the "secondary effects" of porn without condoms. Namely, the court ruled, the government is interested in stemming the spread of STDs among both performers and the general population those performers sleep with.
Moreover, the court wrote, 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 Free Speech Coalition, a trade association for the porn industry, issued a statement Monday claiming that there had not been a single HIV transmission on a porn set in over a decade.
“We have spent the last two years fighting for the right of adult performers to make their own decisions about their bodies, and against the stigma against adult-film performers embodied in the statute," Free Speech Coalition CEO Diane Duke said in a statement, reacting to the appeals court decision. "Rather than protect adult performers, a condom mandate pushes a legal industry underground where workers are less safe."
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