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to Section One | to Arts & Entertainment
posted Friday, December 19, 2014 - Volume 42 Issue 51
Ninth Circuit upholds LA condom law
Section One
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Ninth Circuit upholds LA condom law

by Mike Andrew - SGN Staff Writer

The Los Angeles County ordinance requiring porn actors to use condoms is constitutional, according to a December 15 ruling by the Ninth Circuit Court of Appeals.

The ordinance was passed by voters in 2012, in an effort to protect porn actors from sexually transmitted diseases.

A three-judge panel of the appellate court rejected arguments by porn industry lawyers that the law violates filmmakers' First Amendment free speech rights. For the First Amendment to apply, the Ninth Circuit said, the industry would have to show that porn viewers were likely to understand the 'message' of bareback sex.

'Here, we agree with the district court that, whatever unique message plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message,' said Judge Susan P. Graber, writing for the panel majority.

In her opinion, Graber cited a 2009 letter from the Los Angeles County Department of Health stating the rate of STD infection among porn actors is 20%, compared with only 2.4% for the general public.

Lawyers for the porn industry claimed that the industry's own safety regulations, requiring actors be tested for STDs every two to four weeks, were good enough to protect the actors.

AIDS Healthcare Foundation President Michael Weinstein, one of the activists behind the ordinance, hailed Monday's ruling as a 'total vindication' of his views.

'The court struck down every one of [the industry's] arguments,' he said.

Weinstein added that he hopes the porn industry will appeal the decision to the U.S. Supreme Court, so there can be a definitive ruling.

A statewide condom law before California's legislature died in committee last year, but Weinstein said he hopes it will be resurrected. In the meantime, he said, his organization is going forward with a petition drive to put the issue on a statewide ballot.

Industry spokespeople did not indicate whether they would appeal the Ninth Circuit ruling. They could ask for a review of the panel's decision by the full Ninth Circuit, or they could appeal directly to the Supreme Court.

Since the ordinance went into effect, many porn producers have moved their operations out of LA County.

Since the ban went into effect, the number of film permits in Los Angeles has plummeted from 485 in 2012 to just 40 in 2013. Industry officials indicated that some filmmakers simply stopped applying for permits and went underground, while others moved film shoots to neighboring counties or states.

Vivid Entertainment Group head Steven Hirsch, one of the industry's largest porn producers, told The Associated Press in August that his company had moved its film shoots out of the county. He refused to say where.

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