LOS ANGELES — Southern California’s association with the adult film industry has created thousands of local jobs, generated millions of dollars in film production permit revenue for local governments and earned the San Fernando Valley the monikers “Porn Valley” and “Silicone Valley.”
In November 2012, that relationship suffered a stinging blow when Los Angeles County voters passed Measure B, also known as the Safer Sex in the Adult Film Industry Act, which requires the use of condoms in all adult films made locally. The AIDS Healthcare Foundation promoted it as a workplace safety law designed to curb the spread of sexually transmitted disease.
The law also requires adult filmmakers to complete bloodborne pathogen training as a condition for obtaining a public health permit to make films and authorizes the county to permanently revoke permits.
Since Measure B was passed, according to the porn industry trade group Free Speech Coalition, film production permits in Los Angeles County have dropped 95 percent, costing the county an estimated $450,000 in revenues, and adult film production companies have taken their business to neighboring counties and Las Vegas, Nev.
Now the fate of Measure B — and, possibly, the $6 billion California porn industry — is in the hands of a federal appeals court.
In January 2013, Vivid Entertainment, the industry’s largest production company, and performers Kayden Kross and Logan Pierce sued the county health department, alleging that Measure B imposed “an intolerable burden” on the constitutionally-protected expression of adult film performers.
Condoms are a reminder of “real world-concerns” such as pregnancy and disease, and mandating their use in adult films detracts from the escapism of those films, the plaintiffs have argued.
The lawsuit also said the industry’s self-screening for STDs — performers are subjected to monthly testing — “virtually eliminates the possibility of HIV transmission” and Measure B’s supporters had not demonstrated that condom-free adult film production promotes the spread of sexually transmitted infections.
In August, a federal judge struck down some parts of the law but left intact the provision on condom use, finding that because there was evidence indicating that STD testing may be ineffective, “requiring condoms is a permissible way (at least at this stage) to target and prevent the spread of STIs.”
A government regulation affecting free speech may be constitutional if it materially advances a legitimate governmental interest.
Vivid and its co-plaintiffs appealed that decision and, at a hearing last week, their attorney argued that U.S. District Judge Dean D. Pregerson “should have enjoined Measure B in its totality and not just pieces of it.”
“There’s no demonstration whatsoever that Measure B will have a positive impact,” Robert Corn-Revere, a First Amendment expert, told a three-judge panel of the 9th U.S. Circuit Court of Appeals.
Tom Freeman, an attorney for the AIDS Healthcare Foundation, insisted the foundation had demonstrated a connection between sex without condoms and the spread of disease within the adult film workplace, citing a 2009 report in which the director of the county’s health department said screening alone is “insufficient to prevent STDs and HIV/AIDS.”
But Chief Judge Alex Kozinski questioned how Measure B could promote the government’s interest in workplace safety and STD prevention when porn producers can simply go to “Ventura or to Orange County or to San Bernardino or Riverside.”
“Why wouldn’t common sense tell you that this is ineffective because they’ll just take it across county lines?” he asked Freeman.
“Rubbers Revolutionary”
The appeals court hearing on March 3 touched on a number of issues, including the funding mechanism for the Measure B permit process and “severability”– a legal doctrine that says when parts of a law are found to be illegal, the remainder of the law can still apply.
“Measure B … doesn’t meet any of the tests for severability,” Corn-Revere argued.
It was the condom requirement, however, that dominated the discussion. “[This is] the ‘condoms-in-porn’ statute,” Freeman noted.
Measure B was the brainchild of the L.A.-based AHF, a well-funded nonprofit provider of HIV prevention, testing and health care services whose outspoken founder, Michael Weinstein, has been dubbed the “Rubbers Revolutionary.”
Vivid founder Steven Hirsch has accused the AHF of trying to “drive the industry out of California.” According to Hirsch, when his studio went “condom-only” between 1998 and 2006, it suffered a 10- to 20-percent drop in revenue.
Adult films appeared on Weinstein’s radar in 2004, when porn star Darren James tested positive for HIV and infected three actresses before he was notified of his status by the industry’s L.A.-based testing clinic. Production studios shut down for a month, and James became the center of a nationwide controversy.
Weinstein was unsuccessful in his attempts to lobby state and local lawmakers to mandate condom use on adult film sets. But after a female porn actress tested positive for HIV in June 2009, AHF sued Los Angeles County to compel its health department to require condom use.
“There’s no other workplace where people routinely get diseases and no one does anything about it,” Weinstein told LA Weekly in 2010.
In his September 2009 report to county supervisors, Director of the Los Angeles County Department of Public Health Jonathan E. Fielding said that since 2004, the department had been notified of 2,396 cases of chlamydia, 1,389 cases of gonorrhea and five cases of syphilis among performers in the adult film industry. The data for 2008, he said, indicated that performers experienced “significantly higher” rates of infection than the general public.
AHF lost its case against the county — a judge ruled that health officials have broad discretion over how to protect public health — but then decided to take its campaign directly to voters, collecting enough petition signatures to put Measure B on the November 2012 ballot.
“The Los Angeles County Department of Public Health has documented widespread transmission of sexually transmitted infections associated with the activities of the adult film industry within Los Angeles County,” the law said.
Violations of Measure B are subject to civil fines and criminal misdemeanor charges. Voters approved the law by a margin of 56 to 44 percent.
No positive effect
Hirsch has vowed to fight Measure B all the way to the U.S. Supreme Court, noting that since 2004, more than 300,000 explicit sex scenes have been filmed with no transmission of HIV/AIDS. “We are not against condoms,” he told the L.A. Daily News. “We are just pro-choice.”
“Measure B is a content-based restriction and its implications speak to the very heart of the First Amendment,” Diane Duke, CEO of the Free Speech Coalition, told MintPress News.
In his Aug. 16 ruling, Judge Pregerson said Vivid had alleged sufficient facts in its lawsuit “to show that Measure B’s condom requirement does not alleviate the spread of STIs in a ‘direct and material way.’” But he went on to deny the company’s request for a preliminary injunction, saying it was “unclear what message condom-less sex conveys.”
“Put differently, sexual intercourse performed for adult films and nude dancing both are expressive conduct, but requiring condoms for the former and pasties for the latter are only de minimis restrictions on expressive conduct,” he ruled.
Pregerson also said the criteria for receiving a public health permit, including the use of condoms, were not an unconstitutional prior restraint on speech.
The ruling left the funding mechanism for Measure B in doubt, and since the law went into effect, Los Angeles County has apparently not been interested in enforcing it.
Lawyers for the county are also not defending the law in court and Corn-Revere told the 9th Circuit last week that the health department had actually “opposed the adoption of Measure B, saying that it would have no effect on promoting health and safety because people would simply go elsewhere to make their films.”
“People will have sex outside the county, people will have recreational sex,” he argued. “All of those things … undercut the reasons why Measure B might have any positive effect at all.”
Corn-Revere also noted that in 1998, the California Supreme Court said the state’s prostitution and pandering laws could not be used to prohibit the production of adult films, finding that health and safety concerns did not trump the First Amendment.
Judge Susan P. Graber, though, suggested that Measure B was no different from a hypothetical ordinance that addressed fires and accidents on movie sets by demanding that “everybody take fire safety classes in order to make these films.”
“Can the county require that so that people aren’t injured by falling objects and fires?” she asked Corn-Revere.
“For such a measure to be constitutional, you have to have very specific guidelines and no discretion before a permit could be granted,” he replied. “That’s not the situation that we have here.”
How the appeals court rules in the case could not only affect Los Angeles County, but also neighboring areas such as Ventura County and the City of Simi Valley that have passed laws requiring condom use in adult films. A proposed statewide law stalled in the Legislature last year.
“Striking down the law would be a very significant victory,” Duke, of the Free Speech Coalition, told MintPress. “It would not only protect adult productions, but also set precedents for similar content restrictions that could be imposed on Hollywood in the future.”