January 17, 2012

"Los Angeles Makes Condom Use Mandatory for Adult Film Actors."

The NYT reports:
“Clearly this is about the government overreaching and intruding into consenting adults’ decisions,” said Diane Duke, the chief executive of the Free Speech Coalition, a trade group for the pornography business. “Our standards and protocols are extremely effective and are working. They are taking something they know nothing about and imposing their morality on our industry.”
Can you make the argument that constitutional rights are violated?

79 comments:

Patrick said...

Seems to me that Griswold v. Connecticut told us that the use of contraceptives falls within the penumbras and emanations of the right to privacy, or some such language. Losing the power to forbid such things would also entail the power to require them under that analysis. Bet the Left never saw themselves as the nannies back when they set up the whole Griswold case. Unintended consequences, indeed.


I'm guessing this will result in little other than LA losing that portion of the adult industry that figures it can't make money if their actors use condoms.

Will they also apply this to the amateurs who put their own videos on the internet? What distinction could they make?

Wally Kalbacken said...

Adult film actors have the Constitutional right to travel and they will vote with their feet and shift production to Monroe, WI.

chickenlittle said...

Can you make the argument that constitutional rights are violated?

No, but it takes a load off the actresses.

chickenlittle said...

Actors/actresses, NTTARWT

Michael Haz said...

Is George Stephanopolous guest blogging tonight?

David said...

Who gives a fuck?

Skyler said...

Sounds like reasonable OSHA standards to me!

Patrick said...

Three points, chickenlittle.

bagoh20 said...

Why only porn actors? Why not everyone? Why are adults required and not our children. Is it because we love and care about porn actors more than the rest of our children? Don't you care about children getting AIDS?

t-man said...

You can make an argument that constitutional rights are violated (the message of the film is a fantasy, and that message is clouded by the government's mandated condom rule), but you'd have to overcome Supreme Court precedent that obscenity isn't potected by the First Amendment.

YoungHegelian said...

I guess we can expect an increase in the number of lesbian scenes per film if this passes.

ironrailsironweights said...

Something else should be mandatory for all women in porno movies.

Peter

edutcher said...

It's only free speech if it's oral sex.

Wally Kalbacken said...

Adult film actors have the Constitutional right to travel and they will vote with their feet and shift production to Monroe, WI.

Where girl-girl productions will be all that's made outdoors 6 months out of the year.

PS There have been a couple of relatively high profile AIDS cases in the last couple of years, so the LA nannies felt obliged to do something.

Given that anybody can put their sex lives on the Internet (and is), I have a feeling porn is one step removed in the product life cycle from 8 track tapes.

bagoh20 said...

They are gonna need some new sizes.

Ann Althouse said...

Yeah, what if the porn actor is Catholic?

Bender said...

Can you make the argument that constitutional rights are violated?
_______________

Sure. That argument can be made AFTER someone makes the argument about what constitutional power government has to impose such a mandate.

I suppose that it will be claimed that this is part of the inherent police power of government to protect public health. If that is the case, since the risk of getting an SDT being much higher from any unmarried people in the general population having sex, and the risk of HIV/AIDS being much higher from any two homosexuals in the general population having sex, then could the government require everyone who is unmarried and sexually active to always use a condom?

Ann Althouse said...

"That argument can be made AFTER someone makes the argument about what constitutional power government has to impose such a mandate."

It's a regulation to protect health.

bagoh20 said...

Can't they simply have sex with a cameraman present and then sell it to a porn distributor? They aren't working for anyone - just selling video of their personal sex lives. "We aren't porn actors - I loved her...that day."

Revenant said...

It seems like a reasonable safety regulation, inasmuch as safety regulations are the government's business in the first place.

That being said, I don't see it having much effect. Even if it passes muster in court (doubtful), producers who want to avoid the ban will just move out of the city limits.

Also, the councilman's claim that the law will be easy to enforce because the violation is "on film" is just plain stupid. Adult films aren't big on location shooting, and you can't identify a zip code from the interior decoration of a bedroom.

chickenlittle said...

Ann Althouse said...
Yeah, what if the porn actor is Catholic?

I'd love to hear Nancy Pelosi's answer to that one.

Bender said...

Re: "constitutional rights"

Just an aside here -- but the Constitution does not grant us any rights. Rather, it protects those rights which pre-exist the Constitution and government in general.

Maguro said...
This comment has been removed by the author.
Maguro said...

I think it could be argued that all porn actors are catholic, it's pretty much part of the job description.

bagoh20 said...

When it come to economic liberty and growth, Los Angeles has the stupidest city government under the stupidest state government under the stupidest federal government in the world. I feel so special as a business man here - like one of the last living humans in zombie colony.

Bender said...

Under existing caselaw, such a law is unconstitutional, but not under the First Amendment Freedom of Speech. That's a red herring.

Chip S. said...

Oliver Wendell Holmes, Jr., was presumably unavailable for comment.

MayBee said...

Also, the councilman's claim that the law will be easy to enforce because the violation is "on film" is just plain stupid.

I read that as the councilman volunteering to personally monitor all adult films for possible violations. You know. For the public good.

edutcher said...

Ann Althouse said...

Yeah, what if the porn actor is Catholic?

I have a feeling his general direction wasn't up to begin with.

This just means he/she's got a steeper glide path to Hell.

DADvocate said...

Can you make the argument that constitutional rights are violated?

Sure. The same right that says its your body and you can do with it what you want and enables you to get an abortion in demand.

On the other hand, I guess the adult film industry will be leaving LA and, maybe, California.

Chef Mojo said...

It's moot.

All the porn is filmed in the San Fernando Valley. That's LA County, and out of City of LA's jurisdiction.

Keep on riding 'em bareback, cowgirls!

t-man said...

Following up on the "Deep Throat" thread, as a constitutional thought experiment, what if the federal government, instead of outlawing obscenity, just withdrew copyright protection for obscene material?

Michael Haz said...

"It's a regulation to protect health."

Is it a violation of the equal protection clause to require that one category of people at risk for HIV/AIDS (actors in pornographic movies) are required to wear condoms, while people in other at risk populations have no such requirement under law?

MayBee said...

Much of the San Fernando Valley is within the city of Los Angeles.

AJ Lynch said...

Workers comp rules are usually state laws not city laws. So why is the city getting involved? Perhaps it's just another librul touchy feely issue?

Titus said...

The porn industry is pretty much dead.

It's all about "amateurs' putting videos up on line.

They are more "real" and much hotter.

Porn movies are too staged and not real and I don't want anymore because thinking of all the behind the scene shit turns me off. Fluffing, drugs, Boogie Nights.
Yuck.

tits.

Coketown said...

It's moot.

All the porn is filmed in the San Fernando Valley.


I think the San Fernando Valley is a geographic area, not municipal area, most of which is within LA's city limits.

Synova said...

"Can you make the argument that constitutional rights are violated?"

It would seem to me that the commerce clause requires that this be legislated on the Federal level.

traditionalguy said...

Can't they just outlaw doing porn itself, if the harm done to the working girls is now a Public Health issue?

They already outlaw child porn as a Public Health issue.

President Saint-orum will deal with this.

Seven Machos said...

A better argument would be that constitutional rights are not violated and that the whole line of bullshit cases is built on sadly unsound logic. Tear them down. Build up a foundation of liberty in a much more sensible, democratic, broad way.

Synova said...

"It's a regulation to protect health."

What isn't?

Paul said...

Don't worry Ann, they will just move their jobs out of the state and maybe country like most businesses in California.

Not that I cry for the porno business, but I'm sure that is exactly what will happen.

And it will not be long till California will have to be taken back by Mexico as just another failed state.

Revenant said...

what if the federal government, instead of outlawing obscenity, just withdrew copyright protection for obscene material?

It would make a lot of lawyers very rich, what with there being no objective definition for obscenity. Pretty much every book, film, and song in existence would be at *some* risk of losing protection, since there is no material so blase that some jackass in America won't take offense to it.

Steven said...

1) Griswold and Lawrence. How you have sex is none of the government's business, right? (Of course, since it's hard to defend this as having anything to do with privacy or the ability to form personal relationships, those are weak).

2) Expression. Sex with a condom is materially different in its expressive content than without; if it weren't, there wouldn't be the differential market demand that strongly favors condomless sex and "cumshots". (Commercial speech, limits on obscenity, health and safety of the workers.)

3) Irrational basis for discrimination! Why porn but not other types of sex? (Because regular sex is Griswold/Lawrence protected; lots of precedent for regulating/outlawing commercial sexual activity.)

My expectation is that this moves porn to outside the LA city limits, but still within California/9th Circuit (since I seem to recall there's a local precedent on for-pay porn being under the 1st Amendment there that is not binding precedent elsewhere). There is major differential demand for condom-free porn over condom-using. Overseas production will step in if domestic is curtailed.

Steven said...

what if the federal government, instead of outlawing obscenity, just withdrew copyright protection for obscene material?

Porn would be made overseas. If the US didn't enforce the copyright on foreign porn, it would violate Berne and TRIPS, the countries of first publication then being authorized to engage in economic retaliation. Maybe they'd try to get permission to, say, not recognize US software copyrights.

Jose_K said...

Left LA and, maybe, California... It is the only place where a Court has ruled that pornography is legal. There is aprecedent from 1984 barring prosecution as prostituion.
As said by someone else, amateurs movies and imports will take the markets

Patrick said...

didn't one of the Justices really hesitate to use the word 'fuck" in an opinion (the Fuck the Draft case)? I wonder how he'd react to using "cumshots."

Seven Machos said...

I was talking with a friend at a bar outing the other day. He brought up a good point. It goes like this:

We're men. We've all seen porn -- some more than others. But the internet is filled -- filled -- with free porn. Anyone who can use Google can get plenty of porn. So the question is: who exactly is paying for porn at this point in history? For chrissake, how much porn do you need?

jimspice said...

Per the logic of Citizens United, latex equals speech.

wv: horier

Titus said...

I don't know anyone that pays for porn now.

It's free and many of it is done by people in their own homes-so much hotter than some fake plumber coming to the door of a fab home with a pool.

Just be cautious fellow republicans and lovers of The Bush Doctrine, everyone today has a camera and they are videotaping you everywhere, even when you pinch a loaf in a public restroom.

I like it real grainy, not produced well, and maybe even with some farts during sex.

William said...

Football players have gimpy knees before they're forty and lots of them succumb to dementia before they're fifty. For what? Just so they can act out the sick fantasies of some beer sodden couch potato. When games--from high school thru NFL-- are played in LA, touch football rules should be enforced. To worry so much about the urinary tracts of porn stars and care so little about the knees and brain pans of football players strikes me as disparate impact.

madAsHell said...

ya' we can use a con-dumb, but how we gonna do da' money shot??

Jason said...

The Vaginot Line.

madAsHell said...

7 nachos;
You are a weird dude.

You argue with idiots, and you wonder when there will be enough porn.

Wait...you're not a dude!

shiloh said...

"what constitutional power government has to impose such a mandate."

"It's a regulation to protect health."

hmm, mandate ~ protect health, sounds like ACA. :-P

ie a very fine line between govt. regs ~ perfect union ~ establish justice ~ domestic tranquility ~ general welfare and liberty ...

carry on

Bender said...

There is a fundamental right to freedom of speech and other forms of expression.

There is no right, constitutional or otherwise, to copyright protections.

There is no right to a judicially enforceable copyright at common law, none, and the Constitution gives Congress plenary authority in the area of copyright and patent.

As such, a porn producer may have every free expression right under the sun to make as many porn movies as he wants. But the only inherent property rights he has in those films is in the physical film, DVD, or computer file that is in his physical possession.

The porn producer does not have any inherent speech right or property right with respect to distribution and sale of copies; there is no inherent right to demand royalties from the sale of copies that others possess or prevent others from selling copies or from giving them away for free.

Now, is there an equal protection problem with denying copyright protection to pornography while allowing it elsewhere? Well, that's a different question, assuming you can first demonstrate that pornographers are similarly situated to non-porno film producers.

J said...

"It's a regulation to protect health."

Homosexual sex is more risky than straight sex and does more to spread AIDS.

Therefore banning gay sex is a regulation to protect health.

Both are utter nonsense and not in the purview of what government should be doing. Government is doing such an awesome wonderful job that it should get involved in even more issues? No way in hell.

How about this? As soon as government does 3 things well, then we can consider allowing it to do more. Considering it does nothing well aside from wasting money, government should be severely limited in the functions it performs.

Revenant said...

hmm, mandate ~ protect health, sounds like ACA. :-P

Well it would, were it a federal law and not a local one.

TobyTucker said...

If this is supposed to protect the health of the porn actors, it's a completely bogus reason. All the actors have to have regular HIV/STD check-ups and cannot work if they don't pass. They've been doing this for years and except for a few scares there haven't been any major outbreaks in the industry.

As to the suggestion that they just outlaw porn production, in the case of People vs Freeman in 1988, the California Supreme Court declared that adult film production was protected as free speech under the First Amendment. So there's a good reason the porn industry is concentrated in California other than just the nice weather.

Don't Tread 2012 said...

I can see a cover-up.

This is a naked attempt to suppress free speech.

ElPresidenteCastro said...

Gene Kelly should have been wearing his rubbers when he was Singin' in the Rain.

virgil xenophon said...

"It's a regulation to protect health."

"What isn't?"-----Synova

-----------------------------------

Once again Synova@9:36pm last night gets to the hub of the matter. It is NO ACCIDENT that Robespierres' deus ex machina/killing machine used to avoid the "messiness" and "inefficiencies" of normal politics and government was named "The Committee on Public Safety."

t-man said...

It doesn't sound like a bad result to have all porn production moved overseas due to lack of copyright protection for U.S. made porn.

I suspect that Las Vegas will be the new capital of porn if this ban really comes into effect. It is close to LA and seems to attract a large number of people who are of the type to be in porn.

rhhardin said...

You'd think mandatory condom use would mean masturbation, etymologically speaking.

t-man said...

TobyT -

I took a quick look at People v. Freeman (how awful to have this case remind me of Freeman Hunt!), and the Court specifically says that there was no determination of whether the movie was or was not obscene, so the Court was proceeding as if it was not obscene. The Court hasn't held that obscenity is protected speech.

Peter said...

"I guess we can expect an increase in the number of lesbian scenes per film if this passes."


Computer simulation that's good enough to pass for the real thing?

rhhardin said...

Goffman said, on framing, that a kiss on stage was thought to be acting, on the theory that it was not felt; but that intercourse didn't fall under that exemption, and so was not acting.

Not that the woman couldn't be acting, but only in the normal way. It's still real intercourse.

Come to think of it, Goffman later characterized the sexual moan as the most common form of acting.

NorthOfTheOneOhOne said...

@t-man said...
I suspect that Las Vegas will be the new capital of porn if this ban really comes into effect. It is close to LA and seems to attract a large number of people who are of the type to be in porn.

Phoenix. Just another refugee industry that moves to Arizona.

Roman said...

This is just another example of how the left thinks it knows how people shoould live their lives. Is it a good idea? Yes. Should every good, even great, idea be given the force of law? No.

Joe said...

Most of San Fernando Valley is part the City of Los Angeles. There are exceptions, such as Burbank, Glendale and, oddly enough, San Fernando.

Joe said...

So what happens to all the actors who have sex tapes "stolen"?

Skipper said...

Emanations from the penumbras of the foggy glows obscuring the true meanings of the...etc.

Richard Dolan said...

Interesting.

Since this is local law, whether LA had the constitutional power to adopt it turns on the California constitution and (perhaps) the LA charter. Ann's suggestion that it qualifies as a health regulation should be sufficient for that purpose. You could also think of it as a regulation designed to regulate conditions of employment by requiring a safe workplace (like requiring goggles for welders, e.g.).

The federal constitution comes into play to the extent the conduct is deemed inherently expressive -- that the artistic message is bound up with the specific conduct (no condom use) such that a banning of the conduct is a regulation of the message. Sex is not sex unless it is free and unbounded (or some such Henry Miller-like theme). Once the First Amendment comes into play, a court must balance the weight of the state's interest in the regulatory scheme (measured on a sliding scale from 'compelling' at the top, and going down from there) against the restriction on expression. Normally a compelling state interest is required to impose content-based restrictions on expression. Similarly, a court would evaluate the fit between the state's interest and the regulatory scheme adopted -- e.g., whether the regulation was overinclusive.

I don't think the Griswold line of cases would be relevant. There is no privacy interest here -- we are talking about a film intended for public display. The conduct at issue is not, in any sense, the private relationship between a consenting couple, but instead a movie (presumably, rather than a TV episode). It's just two actors performing a role, presumably as employees of the film maker.

vicereport.com said...

I've asked for and haven't received to date a study regarding whether this mandate will have any effect to reduce STD's including AIDS because the mandate is limited geographically to LA. The mandate will only push production elsewhere. It's a multi billion $ industry that will relocate somewhere.

I also wonder if anyone has done an economic impact study. I can only image it will take a profound toll on the area.

As for it's constitutionality, that's an open question, but I vote no.

A number of articles addressing this issue are aggregated at www.vicereport.com

Ken said...

Can you make the argument that constitutional rights are violated?

Would it be unconstitutional for a legislature to pass a law requiring all male adults wear condoms when having sex? Of course, the answer is yes it would be unconstitutional.

How does recording that sex all the sudden make such a requirement unconstitutional?

Ken said...

Who gives a fuck?

The question that allows rights to be chipped at little by little, first with groups that no one "gives a fuck" about, then broadened because, well, now there's a precedent. Way to think things through David.

BigFire said...

I live and work in San Fernando Valley. While porn industry isn't a major industry, they're not negligible.

At least one major porn producer have already embraced the all condom rule, most have not. They'll simply move their shoot across to a different valley nearby (San Bernardo Valley and East LA that's not in the City of Los Angeles border).

The city attorney thought that this law was
1. Unenforceable
2. Unnecessary
3. Impact adversely local economy

Well, we get the law that the best moron draws up.

Bryan C said...

"I don't think the Griswold line of cases would be relevant. There is no privacy interest here..."

I have to disagree. "Privacy" in this sense simply refers to a fundamental right of self- determination. The government has no authority to mandate that any person use contraception, no matter what job that person happens to have.

And in this case it's even more silly, since they're singling out actors in just one genre. It's like requiring that "comedy actors" always wear brightly colored bow-ties to warn us of potential hilarity.

Tarzan said...

Tarzan is still trying to figure out why porn is legal and prostitution is not. Paying people to have sex is paying people to have sex.

wv: bamrag - colorful slang for male/male romantic entertainment publications

Tarzan said...

Making porn equal to prostitution would make selling here it illegal, whether it came from L.A. or Eastern Europe.

This would be much better than trying to mess about with things like taking away copyright.

Then, those who want to express themselves freely, in video or print, can do so, but the moment they (or anyone else down the line) tries to charge for it, that person becomes guilty of prostitution and liable to arrest.

I'm calling it the Open Porn Initiative.