Paternalistic Condoms-in-Porn Rules Will See California Statewide Vote

Initiative essentially creates a bounty for citizens (and lawyers) to sue producers.


Be sure to wear a condom when you're sodomizing a chain-link fence.
Credit: dyniss / photo on flickr

Next November looks like it will see a bumper crop of ballot initiatives for California voters. We may see pension reform, marijuana legalization, and other important subjects set before the voters.

We've already got three ballot initiatives set for vote next fall. Two involve bonds (including one for more money for schools). The third is a troublesome, meddling proposal that Elizabeth Nolan-Brown warned Reason readers about back in March. California voters will decide whether porn actors will be required by law to wear condoms (and potentially other safety devices—like goggles) under threat of lawsuits and fines.

The legislation mimics an initiative that was passed in Los Angeles County, pushed heavily by Michael Weinstein, president of the AIDS Healthcare Foundation. There's very little sign that the law has actually resulted in increased use of condoms. Los Angeles County has shown little interest in enforcing the condom mandate and licensing scheme, and it's currently tied up in court. What we did see in the wake of the law's passage was a huge drop in the number of porn companies applying for film permits, meaning they either left the area or have simply moved underground entirely.

And there's no evidence that such set meddling is necessary. Despite some scares over the last few years, there have been no cases of on-set transmission of HIV in more than a decade (Correction: There was one case reported in 2014). Furthermore, the development of drugs like Truvada (a drug that, it's worth noting, Weinstein openly resisted) has actually rendered it just about impossible for a person to transmit the HIV virus, even when having condomless sex.

There is no evidence of any need for greater regulation on porn, and that's not even getting into the issue that increased public access to decent filming equipment, editing, and online streaming and sales has turned just about anybody into a pornographer. People can (and do) make their own amateur porn at home and sell it online.

The nastiest part of the initiative (and its true actual purpose) is that it's a lawsuit generator. It gives standing to anybody in the state of California to sue porn producers for violations of the act as a civil action, though obviously nobody except a performer (they're also authorized to sue) could have possibly suffered any sort of harm. It also holds distributors and talent agents potentially liable for violations of the condom rule. Fines range from $1,000 to $75,000, depending on the nature of the violation.

Oh, and the private plaintiff would get 25 percent of the civil judgment (and lawyer's fees! Don't forget the lawyer's fees!). The rest goes to the state. But if the defendant wins, they can only recover attorney fees if the court determines the lawsuit was filed frivolously or in bad faith. It's creating a bounty for citizens (and more importantly, their lawyers) to seek out non-compliant porn and sue.

And then there's the massive new licensing program. Every adult film producer would have to apply to the state for a two-year license to shoot adult films. And of course, violating this condom law would be grounds for having a license revoked or suspended.

Read the entire terrible, paternalistic, unnecessary ballot initiative here. And watch ReasonTV interview Weinstein and others about the Los Angeles version of this initiative, passed in 2012, below: