Is a Statewide Requirement for Condoms Constitutional?

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January 28, 2016; Los Angeles Times

An agreement has been reached between adult film conglomerate Vivid Entertainment and sexual health advocacy group AIDS Healthcare Foundation (AHF) wherein Vivid would not contest the constitutionality of a measure being put forward in Los Angeles County that would require porn actors engaging in anal or vaginal sex on-set to wear condoms. The settlement, of which few public details are known, has not yet been finalized by the courts.

The battle between Vivid and AHF began after a 2012 initiative known as Measure B, or the Safer Sex In the Adult Film Industry Act, was approved by Los Angeles voters. Vivid Entertainment began contesting the constitutionality of the ban soon after.

While the two sides have reached a tentative agreement, California voters may have the ultimate say in condom use when they take to the polls in November. The California Condoms in Pornographic Films Initiative (2016) would require adult entertainment companies to mandate condom use during filming, provide routine testing and access to healthcare related to STIs for actors, and obtain necessary healthcare licenses. The initiative would impose strict fines on violators of the law. (A similar bill failed to make its way through the California state legislature in 2013.)

Supporters of the bill include adult film employees who contracted HIV while on set. Presenting the bill as a worker health and safety issue, former performers say the adult film industry encourages risky behavior and does little to provide support after exposure. Between August and December 2013, four performers in CA alone were diagnosed with HIV. The reaction prompted increased testing for performers from monthly to biweekly testing.

The Free Speech Coalition, a trade organization representing the pornography industry, insists that performer safety is of the upmost concern. While the Coalition understands voter concern for larger public health impacts, they contest the law violates the First Amendment right to free speech. The Free Speech Coalition also argues the law would impose undue stigma on the performers themselves. For their part, some performers contend that commercially available condoms simply do not stand up to the rigors of what is effectively industrial use, and may lead to greater incidences of STI transmission through failure due to friction and chafing.

While the agreement included many concessions from both sides, a statewide requirement could prove more costly. Companies wishing to avoid sexual and reproductive health laws that could negatively impact their bottom line might choose to film in states with less stringent laws. Performer safety should be paramount in the larger public health battle, and should be achieved in a manner that does not stigmatize either actors or persons living with HIV/AIDS. Public health measures must also take into account constitutional concerns and should not violate citizens’ inherent rights, as granted by the Bill of Rights. Achieving a successful partnership in L.A. County now should provide a better foundation for potential conflicts come November.—Stacey Burton Alcocer