San Fernando Valley, a part of the Los Angeles metropolitan area, is home to upwards of one million residents and was, at one point, responsible for 90 percent of all legally distributed porn produced in the United States. In recent years, however, the porn industry has fled the valley in the wake of new legislation that requires the use of condoms in all vaginal, anal and oral sex scenes. Measure B, a ballot initiative passed in Los Angeles County in 2012, was ostensibly designed to expand existing workplace safety requirements by specifically requiring the use of condoms in porn. As a result, porn producers must now obtain a health permit prior to filming, which can be revoked if performers don’t use condoms. In 2013, a Los Angeles court ruled that certain portions of the Measure B’s enforcement were unconstitutional, but the crux of law—the condom mandate—was upheld.
There are two separate motivations for Measure B: workplace safety and public health. However, both of these are inadequate justifications for the law, given research disproving the extent to which the law assumes a public health crisis on porn sets as well as the adverse, on-the-ground effects of the law. Furthermore, in mandating what kinds of expression—the absence or presence of condoms—are legal, as the law verges on unconstitutionality.
Requiring condoms out of concern for workplace safety—while potentially noble—is misguided. The porn industry argues that they prevent STDs through bimonthly testing by the Free Speech Coalition, which maintains a database of STD testing results called the Performer Availability Screening Services. The actual incidence of STDs in the porn industry is contested, as it is difficult to separate STDs contracted through porn from STDs contracted off the set. The recent results of a study conducted by the AHF are delegitimized by the fact that the methods of the study made it impossible to separate STDs contracted on-set from off-set, only requiring subjects to have acted in porn in the last year. Dr. Lawrence S. Mayer, an epidemiologist and statistician at Johns Hopkins Medical School, has taken issue with the methodology of STD analysis in the porn industry, arguing that the statistics are exaggerated.
Measure B is therefore based upon indeterminate, fluctuating information. To mitigate this, rather than implementing the legislation, the incidence of STDs contracted in porn needs to be studied more comprehensively.
Performers remain at risk and precautions should be taken to protect them. However, condoms cannot be the sole solution. Performers typically have sex for hours at a time, which isn’t conducive to the use of condoms. According to veteran sex educator Charlie Glickman, the constant friction of these multi-hour long sessions can cause condoms to rip and break. It can also create friction burns and micro tears, open wounds that leave performers more exposed to STDs. Performer Nina Hartley, who holds an undergraduate degree in nursing, writes: “The friction from the latex, even with lubrication, is painful and breaches the integrity of my mucosal membranes, putting [performers] at greater risk for disease transmission.” Measure B is not only attempting to solve a contested health crisis, but is moreover exacerbating the safety of performers.
The second, more troubling motivation for Measure B is the relationship between porn’s condom-less sex and public health, which Michael Weinstein, President of the AIDS Healthcare Foundation (AHF,) articulates as such: “The fact that most straight porn is made without condoms sends a horrible message that the only kind of sex that is hot is unsafe.”
To combat such, Measure B ‘s regulation of the content of speech—in this case, the decision to omit condoms—is unconstitutional and inconsistent with the absence of laws regulating other “dangerous” forms of speech, like violence in film. The government is attempting to manipulate the public into accepting condoms as “sexy”—a goal to which Weinstein, who drafted the law, openly admits. He describes the desire to publicize safe sex through porn as a motivation for the law equally “as important” as the performer’s health. In this sense, the government is turning private art produced by private organizations into safe-sex propaganda. If the art has no direct, dangerous effect on public safety (i.e. yelling fire in a crowded movie theater), the government has no right to control it. This is no different from banning gun violence in movies because it may condone real violence, a comparison that Weinstein acknowledges, but qualifies in asserting that porn is a different case, because, “real actors are having actual unsafe sex with other actors and actually infecting them with HIV and other STDs, and the audience knows it.”
However, regulating speech based on its perceived truth—and its effect on the audience’s actions—doesn’t justify the regulation. Following this logic, we can assume that violence should be banned from the news because viewers know that it is real and might be inspired to commit acts of violence themselves. In essence, Weinstein is saying that certain speech, the absence of condoms, should be illegal because of the way the public perceives it. But free speech can’t be regulated based off of the public reaction—that’s what makes it free speech.
In December 2014, the Ninth Circuit of Appeals Court ruled that provisions of the law that allow for inspection of porn sets constitute a warrantless search and are therefore unconstitutional. The court upheld other portions of the law, however, arguing that “the condom mandate … has only a de minimis (negligible) effect on expression.” The Ninth Circuit argued that only “relevant expression,” expression that is integral to the meaning of the work, is protected by the First Amendment. It misguidedly assumes, then, that the ultimate meaning of porn is the “erotic message,” and the use of condoms doesn’t interfere with this message in a profound way, when it fact it does. Legal Analyst Mark Kernes writes, “historically, every company that has adopted a mandatory condom policy has experienced a drop in sales, which translates to a decreased ability to have its message seen by the public.” In effect, requiring condoms in porn limits not only the content of speech, but also the reach of that speech.
In certain niches, particularly in homosexual porn after the AIDS epidemic, condoms have become the norm. But this only happened because the audience, which had seen the ravages of the AIDS epidemic, demanded condoms. Viewers couldn’t shake the reality of AIDS and thus couldn’t be fully immersed in porn. In most porn circles, however, viewers are content to suspend their disbelief—and they have every right to do just this.
Both the problems with and the solution to STDs in the porn community demand further study. Possible solutions include mandating testing before any shoot rather than every two weeks. Performers could also be required to avoid sexual encounters for a set period before testing, in order to prevent against STDs with an incubation period. Porn production companies should also be required to take responsibility for any STDs contracted on set. While the California Occupational Safety and Health Administration (CAL/OSHA) does prosecute instances of outbreaks, the production companies should also cover any STD-related medical expenses. Reactionary, unjustified legislation that limits the content of speech deemed inappropriate will not mitigate safety and health problems, but rather exacerbate them.