Pornography

Federal Judge Upholds Porn Condom Law, But Makes Actually Enforcing It Difficult

Get a search warrant, a judge orders

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Bring on the condom-sniffing dogs!
Credit: © boboling | Dreamstime.com

A federal judge has determined that public health risks may trump the First Amendment when filming porn, but not the Fourth and Fourteenth Amendments.

Los Angeles County voters approved Measure B last fall, requiring all porn actors to wear condoms during filming. The measure also introduced a complex regulatory process involving permitting, mandatory training and warrantless administrative searches. Representatives of the porn industry sued. Their main argument was that the condom law violated porn workers' First Amendment right to express themselves by having sex without protection if that was their choice, but there were other arguments against the condom law as well. The plaintiffs lost on the most notable claim, but won on most of the others.

As a result, U.S. District Judge Dean Pregerson refused an injunction blocking the measure entirely, but has blocked Los Angeles County from enforcing the law through administrative fiat (all of which is completely lost in this Los Angeles Times report on the ruling).

To summarize the ruling:

  • The government has a legitimate interest in reducing the spread of sexually transmitted disease. The Los Angeles County Department of Public Health has recorded thousands of cases of STDs among adult film workers. The judge determined the actual harms caused by disease transmission is likely to trump the First Amendment claims in court and thus refused an injunction to block Measure B.
  • The measure allows county health officers to enter and inspect any property where he or she believes adult film production is taking place, levy fines, and seize potential evidence without a warrant. The judge points out that this rule technically allows a county health officer to demand access to any building in all of Los Angeles County and is therefore too vague. The judge blocked this part of the law. Officials can get a warrant from a judge if they suspect illegal porn filming is taking place somewhere.
  • Because adult films are protected by the First Amendment, fees demanded as part of Measure B must be revenue neutral – they can only cover the cost of administrating the law and cannot be used to generate revenue. There is nothing that indicates the fees being charged for a permit to shoot porn are revenue neutral.
  • Requiring a permit to film porn is a form of prior restraint – having to seek the government's permission to engage in acts of free speech. The judge agreed that Measure B did not contain sufficient safeguards to prevent county officials from abusing this authority. The judge stated that there needs to be the possibility of judicial review in the event of denied licenses or if porn sets are shut down. The judge noted that based on the very vague wording of the measure, an official could shut down a porn set over a cameraman having a cold.

Though Measure B proponent AIDS Healthcare Foundation Association President Michael Weinstein told the Los Angeles Times the ruling was a "tremendous, tremendous victory," adult industry lawyer Michael W. Frattori sees otherwise on his blog:

All in all – Measure B will now be much harder to enforce than it already is. But condoms remain a required aspect of shooting porn in Los Angeles County and California. The real question is does the County want to enforce a condom law that will now require a warrant for a search in order just to find violations.

In my opinion, I doubt the County will have the man power, the resources or the funding to start searching sets especially since they will not be able to charge fees for their permits.

As it is, the county doesn't seem particularly interested in enforcing Measure B anyway. They declined to defend the law in court, so the ballot initiative's proponents were granted standing instead. We saw how that worked out with Proposition 8.

Southern California Public Radio has the judge's ruling embedded here for the curious.

Reason TV spoke with the parties involved in the Measure B fight last year:

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  1. The judge determined the actual harms caused by disease transmission is likely to trump the First Amendment claims in court and thus refused an injunction to block Measure B.

    Yeah. The disease clause of the First Amendment. I remember that. “Congress shall make no law except when people are having sex on film and might pass diseases to each other.” I think that’s how it went.

    1. It’s “Necessary and Proper” clause and the “General Welfare” clause. I’m serious btw.

      Might as well throw in the commerce clause to secure unlimted government power.

      1. Sadly I often joke that the constitution has been reduced to seven words: General welfare, necessary and proper, regulate commerce.

        1. Because the founders spent years on a constitution only to nullify it with those 7 words.

          Couldn’t they have simply said:

          Government may do whatever it wants…FYTW!

          1. Well, in Jefferson’s letter to William S. Smith Paris when he was away (I believe it was France) on the new draft of the Constitution, the same letter that famously talks about refreshing the tree of liberty “from time to time with the blood of patriots and tyrants”, he stated his apprehension:

            I do not know whether it is to yourself or Mr. Adams I am to give my thanks for the copy of the new constitution. I beg leave through you to place them where due. It will be yet three weeks before I shall receive them from America. There are very good articles in it: & very bad. I do not know which preponderate.

          2. When Lysander Spooner wrote,

            NO TREASON: The Constitution of No Authority

            what the government saw was,

            NO TYRANNY: The People of No Authority

        2. Unfortunately, we can now add “tax”

        3. Sadly I often joke…

          Sadly, it’s not a joke anymore.

    2. Only busybody reichwing neocons want to peep in on your bedroom and tut-tut your sexual activities.

  2. So what happens now with regular people having sex? Aren’t STDs transmissible that way too? What happens if they happen to film their act?

    1. Have no worry. The busybody nannies will soon appoint a condom inspector to monitor your sexual activities. And only for YOU.

    2. Obviously, semi-permanent condom implementation surgery will be required for all males when they reach puberty.

      They can have it temporarily reversed after applying to the Childbirth Authorization Administration and being awarded the proper reproductive permits.

      1. Or, they can simply apply directly to the Factory of Birth for the one of the newest populators of the planet we call, Earth.

        https://www.youtube.com/watch?v=n2ZOhWAaGVs

  3. So, if the health department can require adult film actors wear condoms and it violates no precepts of jurisprudence, can a legislative body order anyone to wear a condom?

    1. Yes. They can order you to do anything they want. There is no such thing as rule of law. There is only force. And they have more force than you.

    2. Call it a tax.

        1. I thought it was a peniletax…

          1. Both of these are weiners… I can’t decide which rises to the top.

    3. can a legislative body order anyone to wear a condom

      According to the Nazgul, I don’t see why not. Having a baby most definitely affects interstate commerce “directly or indirectly”, and I don’t even see the technical problem around “inaction” that forced them to rewrite OCare as a tax.

      Straight up commerce clause. The only issue would be whether their cases prohibiting state regulation of birth control would apply to a mandate, rather than a limitation, on birth control.

  4. Oh, and the woman in the still in that video? She has the hips of an 11 yr old girl. Just saying.

  5. It’s the adult film industry. ADULT. But nah you can’t decide for yourself the level of risk you are willing to tolerate. Tell me again how progressive California is.

    1. Most “Adult” film stars are under 26 I’d bet.

      So no, according to Obama and Pelosi, they are not adults.

    2. Tell me again how progressive California is.

      Extremely. The most progressive state in the Union. Oh… wait, you thought that progressives were… yeah, lots of people make that mistake.

  6. Wait, why does the AIDS Healthcare Foundation have standing here? Didn’t we just go through with this in Prop 8?

  7. “In my opinion, I doubt the County will have the man power” Heh heh…

  8. Enforcement? I’ll volunteer to perform spot checks.

    1. So, you’re volunteering to do penis checks? I guess if that’s your thing…

      1. Sorry, Warty’s already got that job.

      2. Sounds like a job for former probation/parole officers.

        Win-win. MOAR UNION JERBZ!

      3. I’m remain on set and ensure it remains in place for the duration of the scene…

    2. If they have spots, doesn’t that mean its too late?

  9. Does this mean I am going to have to wear a condom when I watch porn?

  10. Wow. After watching that video, that is about the most horrific attempt at logical argumentation I’ve ever seen or heard. And I’ve been on 4Chan /pol/.

    Obvious moralfag is obvious.

  11. “The judge agreed that Measure B did not contain sufficient safeguards. . . ”

    Only need one safeguard – Must Issue.

    Don’t allow the bastards the option to say no, the permit is only to be used to notify the government that a shoot is being done.

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