Underripe Thoughts On Inevitable Litigation

The porn industry is quick to raise the First Amendment as its primary argument against governmental intervention of any sort. And not without justification — governments from the Feds down to municipalities are notoriously hostile to pornography. Which is odd, because judging by the way the market behaves, it sure looks like pretty much everyone likes the stuff. When no one else is watching.

But the City of Los Angeles cannot help but be cognizant of the fact that a whole lot of porn gets made within its city limits and that this generates substantial tax revenue. At the same time, it has passed a municipal ordinance mandating that producers of porn require the performers to wear condoms while performing. And the idea seems to be spreading.

Friends who just attended the AVN Awards in Las Vegas reported that the industry people they mingled with think this cramps their style immensely. (For the record, I don’t think it would have been my cup of tea — not that I’m squeamish about porn, but this would have been more than a little bit over the top.) I’ve also known several lawyers who have clients in the adult entertainment industry, and for them the law of free speech is not just a matter of academic interest and an expression of high national ideals — it is a matter of economic survival for their cilents in the face of typically hostile local legislative and regulatory activity.

And an “industry representative” has already stated to the media,  “This is government overreach. It’s not about performer health and safety; it’s about government regulating what happens between consenting adults.” So I would expect to see the First Amendment raised, soon, in a challenge to this law.

Of course, the voters of the City of Los Angeles have to first approve the law as an initiative matter. I doubt it would happen, but it’s possible the voters will reject the law and this all will be moot. (And I wonder what kind of a “vote no” campaign the industry would offer.) For now, I’m offering some speculations on the legal merits of the law for the seemingly-inevitable legal challenge.

Here is the operative language of the ordinance:

All producers of adult films … are required to maintain engineering and work practice controls sufficient to protect employees from exposure to blood and/or any other potentially infectious materials controls consistent with California Code of Regulations, Title 8, Section 5193. Engineering and work practice controls include, but are not limited to:

(a) Simulation of sex acts using acting, production and post-production techniques;

(b) Ejaculation outside workers’ bodies;

(c) Provision of and required use of condoms whwnever acts of vaginal or anal sex are performed during the production of an adult film; and

(d) The provision of condom-safe water-based or silicone-based lubricants to facilitate the use of condoms.

The health and safety regulatory angle of the law is obvious — the law is intended to, and obviously rationally related to, preventing the spread of sexually transmitted diseases from one performer to another. Expect that to be front and center in any governmental justification of the law.

As a default matter, I would suggest that any governmental interference with how art is made should be resisted — even if we’re talking about “low art,” something which the Supreme Court has only grudgingly conceded was “minimally” expressive activity. Doran v. Salem Inn, Inc. (1975) 422 U.S. 922, 932. As I see it, activity is either expressive or it isn’t, and while no one’s pretending this stuff is anything other than what it is, it is protected by the First Amendment.

But even expressively-rich artistic activity is not beyond the reach of reasonable viewpoint-neutral regulations. If I’m filming an HBO miniseries of War and Peace, I still have all sorts of laws I need to comply with that might change the way I go about my craft. I can’t use real bullets, for instance — I’m clearly not allowed to murder my extras for the sake of “realism.”

Leaving laws of general application like that aside, there are still lots of other laws that dig in to how films can be made, both the sexually-explicit films at issue here, and more mainstream stuff. You need a municipal or county license to film staged events with the intent to commercially distribute the film later, which means you have to agree to particular times and places where the filming will take place, and you have to pay money. You can’t use minor actors for more than “X” number of hours per day, and there’s that whole depicting-sex-with-minors restriction too. I believe, but haven’t researched, that there are laws restricting how animals can be actually treated and animal cruelty laws apply — special effects can visually simulate harm to the animals, but they can’t actually be harmed. 

How is requiring that a condom be used during the filming of a pornographic movie materially different from these other content-specific regulations? If the above examples are “reasonable time, place, and manner” restrictions, then a condom law may well be too. The law doesn’t say that the sexually explicit movie can’t be made, nor does it regulate the kinds of sex acts that can be depicted. It specifies that  

I’m leaning towards the side of the issue that would allow this as a reasonable, viewpoint-irrelevant regulation. But there are other sorts of ways the law might be challenged. Already out there is the idea that this kind of thing can only be regulated by the sate itself and not by a city, but that seems to me to be a complete non-starter, at least knowing what I know about the structure of state and local governments here in California. The state creates and delegates powers to municipalities, either directly (in the case of charter cities) or indirectly (through a county, which is itself a political subdivision of the state). And local ordinances regulating health and safety can exceed the scope of state laws so long as they don’t contradict the state laws.

The most interesting angle I can think of for a challenge to the law is that it is, in practice, gender-specific. Only men are required to wear condoms. Female performers need not. Nor do performers of either sex engaged in specific kinds of sex acts with female performers obliged to use other sorts of protection (e.g., dental dams). So on the First Amendment side of things, it may be underinclusive, and on the Fourteenth Amendment side of things, it may discriminate irrationally on the basis of gender. As I read the text of the ordinance, the emphasis is clearly on a male performer wearing a condom during penetration. But the phrase “…engineering and work practice controls sufficient to protect employees from exposure to blood and/or any other potentially infectious materials…” may be enough to save it.

That, however, will get in to the question of how the ordinance is actually enforced. Will the inspectors in practicerequire that dental dams be used when filming an act of oral stimulation perfomed on a woman? Is there a practical and reasonable means available for the producer to achieve the result of a visual depiction of that act through “acting, production and post-production techniques” while not actually having the performers engage in that sort of bodily contact? If that is the case, then it may be that the law is discriminatory on the basis of gender, not on its face but in practice. That is not the sort of thing that can be addressed on a facial challenge to the law, so I’d look for the law to be implemented first before a court tackles such a question.

And that leaves an interesting economic question, and I’m shouting out specially to David Ryan and Jonathan McLeon here for their thoughts. For practical purposes, the pornography industy has a substantial infrastructure of studios and production facilities built up in and around the Los Angeles area, mainly in the city of Los Angeles itself. Demand for the product is so high that nothing is going to shut the industry down, but could the industry relocate and take the jobs and tax revenue associated with its activities elsewhere? Where would it go? I’m told, but have not bothered to research, that there are only a few states in the U.S.A. where such films are allowed to be made at all, and if that is true, then there is only a limited universe of locations where the industry could go to. At least, within the U.S.A. — economic pressure has already pushed a lot of filming activities to Vancouver, British Columbia. Could a condom-law-free Vancouver become the new Porn Capital of the World — and would it want to be?

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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