If you haven’t been following the condoms-in-porn push with a giant Sherlock Holmes magnifying glass like I have, basically, the background is that an LA County law (Measure B) requiring condoms in porn was passed in 2012. The AIDs Healthcare Foundation, who backed it, tried to expand the law statewide on the most recent ballot, but failed. Then this week, a challenge to Measure B on First Amendment grounds was struck down by the 9th Circuit Court, with Judge Hitler K. Stalin ruling that condom-free porn is not a First Amendment right.
In today’s opinion (read in full here), the 9th Circuit agrees with a lower court that intermediate rather than strict scrutiny of the law was appropriate to analyze the law under the First Amendment. Although the entertainment industry is content based, which usually gathers strict scrutiny, the 9th Circuit points to an exception when ordinances regulate “speech that is sexual or pornographic in nature” and when “the primary motivation behind the regulation [is] to prevent secondary effects.” A law that regulates sexual speech intended to prevent STDs fits the exception.
Did you catch that? Here, let’s attempt to elaborate:
Vivid and other plaintiffs attempted to argue that condomless sex conveyed a particular message about sex in a world without risks like pregnancy and disease.
“To determine whether conduct is protected by the First Amendment, we ask not only whether someone intended to convey a particular message through that conduct, but also whether there is a ‘great’ likelihood ‘that the message would be understood by those who viewed it,'” writes 9th Circuit Judge Susan Graber. “Here, we agree with the district court that, whatever unique message Plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message. So condomless sex is not the relevant expression for First Amendment purposes; instead, the relevant expression is more generally the adult films’ erotic message.”
Anyone else get the feeling that Susan Graber’s goal here was not to be quoted at all for posterity? Her opinion’s no “separate but equal,” that’s for sure.
Having so decided, and further concluded that the condom mandate is a de minimis restriction akin to ordinances that require strippers to wear pasties-and-a-G-string without interfering with strippers’ speech, the 9th Circuit upholds it as furthering a legitimate purpose. [HollywoodReporter]
So you see, requiring condoms in porn is okay, because those other restrictions upon free speech are also okay. As I like to say, if you don’t think this G-string is interfering with my free speech, you’re just not hearing what these balls are trying to say.
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.”
“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.” [Refinery29]
I use condoms in my private life and prefer to watch condom-free porn, so obviously I’m a little biased on this issue. But if you ask me, our founding fathers would be going soft in their jack-off coffins if they heard about this.