Condoms and Content-Based Discrimination: The First Amendment Implications of “The Safer Sex in the Adult Film Industry Act”

This week, Los Angeles County voters approved “The Safer Sex in The Adult Film Industry Act,” popularly known as Measure B.  Supported by fifty-six percent of voters, the Act will mandate condom use on adult film sets, and require porn producers to obtain permits from the Los Angeles County Department of Public Health prior to shooting sex scenes.  The fees collected from requiring, and charging for, permits will finance periodic inspections of film shoots to ensure that actors are using condoms.  Violators of the ordinance may be subject to civil fines or misdemeanor charges.

Diane Duke, President of Free Speech Coalition, a trade group that supports the adult film industry, sent a letter to the Los Angeles County Board of Supervisors promising to challenge the Act in court.  Duke maintains that the “intolerable law,” is unconstitutional on a number of bases, but specifically on First Amendment grounds of “forced expression.”  In contrast, supporters of the law call it a straightforward health and safety regulation that ultimately raises few, if any constitutional concerns.

In this column, I will briefly explore a different First Amendment concern that the Act potentially implicates.  It has long been established that sexual speech that is neither obscene nor subject to some other legitimate proscription is fully protected by the First Amendment.  Thus, requiring pornographic films to include condoms might be a content-based distinction with regard to that speech.  Such distinctions are presumptively invalid under the First Amendment, and thus, if the Act’s distinction were indeed content-based, the Act would be sustainable only if it were to pass strict scrutiny.

But even if the Act survives First Amendment scrutiny, perhaps it would be better to assess its validity from a different perspective.  As adult-film star James Deen said in connection with the Act’s passage, the “community of adult entertainers [is] being continually bullied and used by others.”  Would 56% Los Angeles of voters really have supported a law that required them—that is, all Angelenos—to use condoms in every sexual encounter?

Content-Based Distinctions Are Anathema to the First Amendment

The Supreme Court has repeatedly held that as a general matter, the First Amendment means that the government has no power to restrict speech because of its content.  There are, of course, exceptions to this general rule.  Neither obscenity, incitement, speech integral to criminal conduct, nor fighting words are entitled to First Amendment protection.  But sexual speech that is neither obscene, nor fairly included in another one of these narrow, historical exceptions is entitled to First Amendment protection.

When a legislature—or, as here, a group of voters acting directly—makes distinctions based on the content of protected speech, the distinctions are presumptively invalid unless the law or measure at issue passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly tailored to serve that interest.  As the Supreme Court recently reiterated, this standard requires that the government must identity an “actual problem in need of solving,” and the curtailment of speech must actually be necessary to the solution.  The standard is demanding, and thus content-based distinctions rarely survive.

Required Condom Use Cannot Pass Strict Scrutiny

On its face, the California ordinance requires the use of condoms whenever acts of vaginal or anal sex are performed during the production of an “adult film.”  By its own terms, therefore, the Act does not apply to obscene speech, but instead only to protected sexual speech.  Thus, the imposition of civil and criminal penalties depends solely on the content of the adult film at issue.  Only films depicting vaginal and anal sex without a condom are subject to regulation.  If the presence of a condom were enough to convert otherwise protected speech into obscenity, prosecutors would be very busy.

Undoubtedly, stemming the widespread transmission of communicable diseases, particularly HIV, is a compelling governmental interest.  However, strict scrutiny requires that the legislature identify an “actual problem” in need of solving.  Since 2004, more than 350,000 sex scenes have been shot without condoms, and there has not been a single instance of HIV transmission on set.  These impressive statistics are likely due to the adult film industry’s self-imposed testing regime.  Before each scene, adult film stars must prove that they have tested negative for HIV within the past 15 days.  While there have been a few reports of other, less deadly, STDs being transmitted on adult film sets, the reported cases are so few that it would be difficult to call them an “actual problem.”  Certainly, rates of infection appear to be smaller in the adult film industry than in the population at large, apparently due to industry self-regulation.

But even if we assume that STD transmission on adult film sets is an “actual problem,” it is unclear whether the Act is narrowly tailored.  Narrow tailoring requires that no more speech that is necessary be curtailed.  In this instance, the Act makes subject to civil and criminal penalties all sexual speech in which a condom is not used.  A required testing regime, much like the one the industry has imposed on itself, would achieve the same ends without curtailing any speech.

Thus, in addition to making arguments about forced expression, vagueness, and overbreadth, the Free Speech Coalition might say that this law is “intolerable” because it discriminates on the basis of content.

The Real Problem Is That the Act Affects the Dignitary Interests of Adult Film Stars

Irrespective of whether the Act could survive a First Amendment challenge—and, as I have argued above, I believe that it could not—it would be useful to consider the dignitary harms that the Act visits upon workers in the adult film industry.  Although these performers are taken less seriously than more mainstream actors and entertainers, adult film stars provide a service that some 40 million Americans openly admit to regularly enjoying.  The actual numbers are almost undoubtedly higher.  While few Americans have as many different sexual partners as the average adult film star, the fact that there are humans at all is by itself compelling evidence that people do not use condoms during every sexual encounter.  This unprotected sex, moreover, often occurs in situations in which the participants have much less information about their sexual partners than adult film stars do.  It may be awkward to exchange proof of HIV results on a first date, but it is not at all awkward—and usually de rigeur—to do so on an adult film set.

Imagine a hypothetical statute that made unprotected sexual intercourse between unmarried persons a criminal offense.  In other words, if two consenting adults met at a bar and decided to go home for a sexual encounter, the law would require that they always use condoms until and unless they marry.  The statute, though difficult to enforce, would be said to help prevent the spread of sexually transmitted disease, and perhaps force partners to have more honest conversations about the risks associated with their sexual activity.

I have no doubt that such a statute would be voted down at the ballot box.  Most people would find the hypothetical statute to be a tremendous violation of their sexual freedom, even if they could not precisely articulate a reason why.  And indeed, even if a court eventually sustained the hypothetical statute against a constitutional challenge, I have no doubt that a legislature would eventually repeal it.  One reason might be that the hypothetical statute would deprive individuals of the dignity of risk.  Human interactions, particularly sexual ones, are filled with risks, whether emotional or physical.  To deprive single individuals of the ability to navigate these risks on the same terms as married individuals would be a denial of the single individuals’ dignity.

And so it must be with the Los Angeles Act.  As even Justice Scalia has said, “our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.”  Plainly, “sex workers” are not now, nor will they ever be, a protected class requiring heightened scrutiny under the equal protection clause.  But, would 56% of Los Angeles County residents accept for themselves the requirements that they have imposed on adult film stars?  I sincerely doubt it.