California's Condom Mandate: New Ballot Initiative Targets Adult Film Industry

We live in a democratic society, and that means that we can put certain issues and people to a vote and let the majority rule. However, there are certain rights that no majority percentage can vote away: the right to worship, the right to speedy trial, and the right to speak and express oneself freely are some examples. However, residents of the city of Los Angeles may soon get a chance to weigh in on whether or not adult film actors have the right to decide for themselves: condoms or no condoms.

The AIDS Healthcare Foundation (AHF) has advocated for the enforcement of condom mandates in the adult film industry for many years. Their most recent tactic is to put their mandate to a vote. By the end of November, AHF had enough signatures (15% of the voters in the previous mayoral election) to get the Initiative on the ballot. This means that come June 2012, LA residents might be able to vote on whether or not to tie porn production permits to the mandatory usage of “barrier protection,” like condoms in the film’s production.

However, there’s a big problem with the Initiative: prohibiting films that refuse to use condoms is a violation of the constitutionally guaranteed right to freedom of speech. While the U.S. is a democracy, we’re a constitutional democracy, which means individuals have a number of rights that are protected, regardless of the number of people who vote to abridge them. For example, 99% of a town may vote to make it lawful to imprison the 1% of the population without a trial. The measure might pass, but it would not be lawful as it would violate the constitutional right to a trial. In this case, the condom mandate would abridge free speech by prohibiting adult films that refuse to utilize some form of barrier-protection.

While it’s true that “obscene” speech is not guaranteed the same protection under the constitution as other types of expression, the industry as a whole could not be lumped into the obscenity category. The “Miller Test,” which is a method of determining obscenity that came out of the 1973 Supreme Court case, Miller v. California, would need to be applied to every film before the state of California would have the right to restrict. They would need to prove all of the following: that “the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,” that “the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,” and that “the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” This requirement is perhaps the main reason that California mandates condom usage and fines but does not prohibit producers of condomless erotic films.

The ballot initiative, were it to pass, would condition the issuance of permits to produce adult films on compliance with the condom mandate. Presumably, if a producer is found to be non-compliant with the law, their license will be pulled and the filming stopped. This raises a number of questions on principles like the right to free speech and sexual freedom, as well as practical questions about consequences of truly enforcing this ban.

Condom mandates = an end to girl-on-girl

First and foremost of concern ought to be the implications of such a mandate on personal liberty and free expression. Ryan Keely, an erotic entertainer and sex educator, has been collecting statements from members of the industry in order to project the opinion of those people the ballot initiative seeks to protect. Justine Joli, an adult film actress who specializes in female-only films stated her belief that the requirements of this law would bring an end to her preferred genre:

Once again the government is trying to force me to have sex in a way that I do not enjoy. The proposed regulations would make girl on girl sex scenes un-sexy and un-marketable. As a girl on girl performer, I strongly oppose these new regulations. I feel girl on girl sex films would never be shot, and I would be forced to perform with men if I wanted to keep making a living in the industry I have worked in for years.

Another female performer, Ela Darling, noted that not only will the mandate reduce her safety on the job, but it will diminish her autonomy as a worker.

If these changes go through, performers will be considered employees of a production company rather than independent contractors… If that is the case, then the self-imposed STD testing procedures that have made me feel safe and secure in my career will be considered workplace discrimination, and I will be disallowed from verifying that my costars are free of infection.

Luckily for these performers, and anyone interested in preserving freedom of individual choice in work, sex, and art, the voices against the ballot initiative are growing in number and strength. Of those who are downright opposed to or simply skeptical of the initiative, a serious concern is the high cost the fight will impose on tax payers. According to the AHF, the direct cost of verifying the ballot initiative will be $700,000 if more ballot initiatives are introduced. However, if it stands alone, the measure will need to piggyback onto a county ballot, costing taxpayers up to $4.4 million!

In addition to the concerns about the economic impact the ballot measure and subsequent mandate would have on Los Angeles, some lawmakers and regulators have expressed concern about the constitutionality of the measure. Earlier this month, the city of Los Angeles filed suit to invalidate the ballot measure on the grounds that it is preempted by state regulations, which already require barrier protection on adult film sets and called the Initiative a “waste of taxpayer money.”

As the Executive Director of the Free Speech Coalition noted, “History has shown us that regulating sexual behavior between consenting adults does not work. The best way to prevent the transmission of HIV and other STIs is by providing quality information and sexual health service.” And while the AIDS Health Care foundation honestly may have the interest of adult film actors in mind, their efforts to halt the transmission of STIs have backfired in a bad way. As I wrote about earlier this year, the AHF’s media war against the Adult Industry Medical Health Care Foundation (AIM) ultimately forced the organization to close. That facility had become a standard-bearer in the adult industry; if a porn actor wanted a job, it was obligatory to be in the AIM health status database, which required getting tested every 30 days. The AIM made it easier for directors to keep their actors safe, and when it closed down, the group that supposedly cared about adult film actors rejoiced.

Hopefully, if the measure does make it onto the June ballot, the voters of Los Angeles will recognize the rights of adult actors and all people to determine the best way to protect their health while expressing themselves artistically, sexually, and making a living. However, if the voters do decide that it’s their responsibility to protect consenting adults from their own decisions, they had better be prepared for the long and expensive legal battle that will surely follow.

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