Justia guest columnist and Cornell Visiting Scholar Antonio Haynes comments on an issue that was raised recently in a Los Angeles Proposition best known as Measure B: Should pornography industry performers be required to use condoms while on set? L.A. voters said yes, but Haynes contends that there is a strong First Amendment argument against the measure, based on the tenet that speech cannot (with very limited exceptions) be regulated based on its content. Although decreasing the incidence of unprotected sex is a compelling government interest, Haynes notes, Measure B does not seem to solve an “actual problem,” to use the Supreme Court’s phrase, as the adult film industry has self-regulated with great effectiveness. Thus, the objection to pornography without condoms seems to arise not from the fear of disease, so much as from the objective of controlling the content of pornography. Ultimately, too, Haynes says, performers’ dignitary interests are at stake—just as all Angelenos’ would be if everyone, not just porn performers, were subject to Measure B.

Justia guest columnist and Cornell Law Visiting Fellow Antonio Haynes comments on a recent controversy in which parents of two public school students did not object to their daughters undergoing corporal punishment (specifically, paddling), but did object to the punishment being carried out by men, rather than women. Haynes points out that, upon closer examination, the issue here is not actually about sex, but about sexual orientation; the parents assumed the males conducting the spankings were straight and thus thought that they might find performing the spankings erotic. Noting that corporal punishment in the schools has not been ruled by the Supreme Court to be unconstitutional, and that 19 states still allow it, Haynes suggests that issues like who may administer a spanking tend to distract us from asking deeper questions such as why we still accept corporal punishment in our schools, and why—if we trust school officials to paddle students—we do not also trust them not to harbor erotic motives while doing so.