January 15, 2015 By Stephen Klarich
mandatory condom use for all porn stars in Los Angeles.
Do you think mandatory condom use should be required by adult film actors?

If you are a fan of movies, you may have heard the phrase “the suspension of disbelief” at some point in your life. It is a phrase used to describe the goal of any film, which is to take the audience out of their daily lives for a couple of hours by getting them to believe what they are seeing is real. If the director or the actors make a mistake, that illusion collapses, and the viewers are pulled out of the film and back into their lives.

Perhaps no cinematic genre relies more upon the suspension of disbelief than pornographic films. As the late comedian Richard Jeni once put it, “Every X-rated movie should be called what it is: ‘Stuff That Never Happens to You.’ Starring: People getting a lot more action than you.” 1 While Jeni’s line was intended to get a laugh, it speaks to a real truth: pornography exists to appeal to its viewers’ fantasies.

The reliance upon the audience’s fantasies is part of the reason that the adult film industry is up in arms over a recent ruling by the Ninth Circuit U.S. Court of Appeals. The court rejected the industry’s challenge to Measure B, a regulation that voters in Los Angeles County passed in 2012 requiring adult film stars to use condoms while shooting pornographic scenes.

Condomless Sex is Not Protected by the First Amendment

In the lawsuit, the industry’s representatives contended that mandatory condom use is a restraint on the filmmakers’ right to freedom of expression as guaranteed by the First Amendment. They argued that pornography allows the viewer to indulge in his or her sexual fantasies without having to deal with the potential consequences of sex, such as pregnancy or sexually transmitted diseases. Requiring the actors to wear condoms reminds viewers that sex has those very real and difficult consequences, and the sight of a condom therefore destroys the fantasy message the filmmakers are trying to convey to the audience.

The court disagreed with this argument because it was unconvinced that the filmmakers’ message was getting through to the audience. Judge Susan P. Graber, writing for the majority, stated, “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.” 2

Does mandatory condom use violate the first amendment?
Freedom of expression is granted under the First Amendment.

Supporters of the mandatory condom use ordinance, such as the AIDS Healthcare Foundation and its chairman, Michael Weinstein, declared the ruling a “total vindication” of their efforts to reduce the number of sexually transmitted disease cases in the adult film industry. However, the industry disputes the figures, claiming that over 350,000 sex scenes have been shot without condoms since 2004, and not one case of HIV infection has been found. 3 

Performers also believe that the current screening that is in place is sufficient to promote a clean and safe environment. Actress Nina Hartley, who has a Bachelor of Science degree in nursing, said, “”I have had over 165 negative HIV and STI tests. I have been tested every three to four weeks for the last 12 years. How many people out there actually know their HIV status? Testing works for us, and condoms work for outsiders.” 4

Condoms Doing More Harm Than Good?

Hartley also pointed out that condoms actually pose a health risk to the men and women in the industry. “Shooting scenes with condoms are noticeably more uncomfortable,” she said. “The friction burn is real — both vaginally and anally. Condoms slip off. Condoms rip. And they get stuck inside. They aren’t built to withstand our shoots.” 5

Opponents of the measure also worry that the court’s decision to uphold the L.A. County ordinance will also mean both a continued loss of jobs as well as driving of the adult film industry into an underground, illegal undertaking. In 2012, 485 permits were issued for adult films. In 2013, following the ban on condomless sex in pornographic movies, the county only received 40 applications for permits. 6 It is estimated that L.A. County could lose as many as 10,000 jobs because of this regulation. 7

Share Your Feedback with Us

We at Wallin & Klarich would like to hear from you about this topic. Do you think that Los Angeles County’s requirement of condoms in pornographic films is a good idea? Or do you think that the industry should be allowed to regulate itself as it has done in the past? Please feel free to leave your comments below.

1. [Richard Jeni, “Stuff That Never Happens to You,” Greatest Bits, January 13, 1997.]
2. [John Rogers, “Appeals Court Upholds Condom Use in LA Porn Films,” Associated Press, December 15, 2014, available at http://abcnews.go.com/Entertainment/wireStory/appeals-court-upholds-condom-la-porn-films-27616707.]
3. [Donald McNeil, Jr., “Unlikely Model in H.I.V. Efforts: Sex Film Industry,” New York Times, November 5, 2012, available at http://www.nytimes.com/2012/11/06/health/unlikely-model-for-hiv-prevention-porn-industry.html?pagewanted=all&_r=1&. NK Pornographic Films and]
4. [Mitchell Williams, “How a Straight Adult Performer Convinced Me That Condoms Are Useless in Porn,” Huffington Post, November 21, 2012, available at http://www.huffingtonpost.com/mitchell-williams/how-a-straight-adult-performer-convinced-me-that-condoms-are-useless-in-porn_b_2165066.html.]
5. [Id.]
6. [Rogers, supra.]
7. [McNeil, supra.]

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