California’s Defeated Condom Initiative and the First Amendment

Posted in: Constitutional Law

On election day, California voters had the opportunity to weigh in on a ballot initiative, Proposition 60 (“Prop 60”), and they rejected it. The initiative provided, among other things, that male actors in pornographic movies would have had to wear condoms during performances. In this column, I will consider the validity of Prop 60 from a free expression perspective.

The Initiative

Prop 60, touted as a public health measure, would not only have required pornographic (“porn”) actors to wear condoms but would also have provided private citizens with the right to sue “all individuals and entities with a financial interest in the making or distribution of adult films who violate” the law in question, if the government did not act on a complaint about noncompliance. Some porn actors believed that rather than aiming to truly protect their health, Prop 60 was intended to hurt the porn industry (by creating condom police) and believed as well that the law could have threatened actor safety by potentially revealing actors’ identities during lawsuits authorized by the initiative. For this and other reasons, many actors and others urged people to vote no on Prop 60. For purposes of this column, however, I will assume the good faith of those who supported and initiated Prop 60 and will evaluate the defeated initiative on that premise.

A Public Health Purpose

Assuming good faith, the purpose of Prop 60 was to ensure that actors in pornography would be protected from the spread of sexually transmitted infections to which they would otherwise have been vulnerable when engaging in sexual activity for a living. The assumption behind the initiative was presumably that consumers of pornography prefer to watch material in which the actors’ genitals are fully exposed rather than covered with a condom during sexual acts. Due to this preference, producers could be expected to ask actors to skip the condoms and thereby endanger their own and their many partners’ health. Prop 60 would have thus provided an incentive, in part through the threat of litigation, for producers to not only allow but actually require actors to use condoms and thereby comply with the law.

The Potential First Amendment Problem

It is certainly legitimate for the government to pursue public health objectives, and Prop 60 appears to do just that. So what might the problem be with requiring porn actors to wear condoms during performances? One potential problem is that the First Amendment protects the freedom of speech, which includes pornography that does not satisfy the exacting legal standard for obscenity. Prop 60, on the other hand, appears to target pornography and therefore free expression by specifically requiring that performers in pornography wear condoms.

One could imagine a similar law prohibiting actors in regular movies from smoking cigarettes, ostensibly to protect the health of the actors. Actors in pornography are not, of course, the only people having sex and therefore in need of protection against sexually transmitted infections, just as actors in regular movies are not the only people endangered by the use of cigarettes. The law, however, would not have required all private citizens to use condoms whenever they had sex. It would not even have required a high-risk subset of the population, such as non-monogamous couples, to use condoms. Instead, only those people appearing in a form of free speech—pornographic movies—would have been bound by the law to use condoms.

When a law directs itself at a large problem by singling out the problem as it arises in the free speech context, it represents a potential First Amendment violation. By contrast, neutral laws that apply to everyone but happen to have a negative effect on free speech generally do not raise First Amendment concerns. A law that required all sexually active men to wear condoms might accordingly have been just as harmful to the porn industry as Prop 60, but it would not have violated the First Amendment. (I will leave to one side the question whether it would have violated a constitutional right to sexual privacy).

Responding to the First Amendment Challenge

What might supporters of Prop 60 say in defense of the initiative? One response is that Prop 60 did not target speech but rather targeted sexual interactions in which money changes hands. Unlike other consensual sexual encounters, which are presumed to be based on mutual desire, porn actors have sex for money. In such a situation, there is arguably pressure on the actors in question to satisfy the wishes of those who are paying them to have sex, i.e., the producers of the pornography and ultimately, the consumers of the pornographic material.

If two people are having sex without the involvement of money, it is arguably easier for one or the other partner to insist that the couple use a condom, since the relationship is between presumed equals, each of whom can refuse to consent to condomless sex. Once money is at stake, however, a refusal to consent could potentially deprive the actor of his livelihood, so there is a strong and coercive incentive to comply with the wishes of the person paying for the service and demanding condom-free sex.

Money changes hands in the prostitution context as well, and one would expect similar pressures to be brought to bear on sex workers considering whether or not to assert an interest in condoms being used. In California, however, prostitution is already illegal, so it arguably would not make much sense to have required sex workers to utilize condoms while simultaneously prohibiting the sex work altogether.

In California, then, the one lawful context in which people receive money for having sex may be the porn industry. Given that fact, Prop 60 may be best characterized as a speech-neutral public health regulation of sex performed for money, where consumer pressure poses a threat that we do not find to the same degree in non-monetary sexual interactions. On this theory, Prop 60 would have survived a First Amendment challenge arguing that the initiative targeted speech for regulation. Whether Prop 60 was a good idea—and whether it was indeed pursued in good faith—are independent questions. But assuming good faith, as a free speech matter, the initiative—had it passed—would probably have qualified as a valid law geared at preventing the spread of sexually transmitted diseases.


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