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Ninth Circuit okays law mandating condoms in adult films

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Over a dozen years ago, I started providing First Amendment defense and other legal representation to members of the adult entertainment industry.

In that regard, I have read with interest about Los Angeles’s law requiring condom usage in the making of adult films. When Ed Meese was Reagan’s attorney general, obscenity prosecutions were brought for films merely depicting the most ordinary of sex involving oral and vaginal penetration. By now, such activity is par for the course if adult filmmakers wish to sell their products.

The Ninth Circuit on December 15 okayed this condom requirement, which applies to vaginal and anal intercourse, in part relying on such Supreme Court precedents as allowing an ordinance requiring topless dancers to cover their breasts with pasties. Vivid v. Fielding, ___ F.3d ___  (9th Cir., Dec. 15,2014). However, the ill-advised secondary effects principle that is so often used by courts to allow limitations on adult video stores and strip clubs to try to curb such ills as urban decay are not involved in adult filmmaking; nevertheless, Vivid addresses the secondary effects of sexually transmitted diseases.

Certainly, requiring condom usage in adult films is an encroachment on First Amendment free expression rights. Imagine if a law required Michelangelo’s David statue to wear a condom. Even though Michelangelo’s David statue represents higher art than most adult films, that does not rob adult films of First Amendment protection.

Of course, from the standpoint of reducing the risk of catching sexually transmitted diseases, plenty of adult video actors and actresses might be breathing a sigh of relief that the Los Angeles condom mandate has been upheld, where plenty of adult actors likely previously felt that insistence on using condoms might mean less work available to them.

Adult filmmakers certainly have the option to relocate to places that do not have condom laws. However, the Los Angeles area is the adult video industry’s Hollywood, where a high concentration of actors and production staff are readily available, and adult filmmakers have the protection of California caselaw confirming that adult filmmaking does not constitute criminal prostitution.