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Debating condoms in porn

Posted: September 20th, 2013 | Columns, Featured, Legally LGBT | No Comments

Paul McGuire | Legally LGBT

Younger generations of gay and bisexual men who did not experience the height of the AIDS crisis are lured in by images of bareback sex in pornography. To the younger viewer, condoms detract from the enjoyment of porn, and a new generation of pornographers recognizes the allure of bareback videos.

Many studios producing bareback porn are based in Los Angeles. In the 2012 election, Los Angeles County passed a referendum requiring condoms to be used in any material showing vaginal or anal sex.

Paul McGuire

Paul McGuire

Some readers may be a fan of the idea of requiring condoms in porn, either for the safety of the actors themselves or to send a message to youth that bareback sex is not sexy or cool. Admittedly, many younger viewers might be led to believe that they don’t need to use condoms in their own sexual encounters.

Others may be happy consumers of bareback porn and want to see its production continue. I know a number of people who do not enjoy watching porn when condoms are involved.

The studios that produce bareback porn were not able to defeat the ballot measure in the election, so they are moving forward with a lawsuit to stop it. In the lawsuit, studios claim that requiring condoms in porn violates their First Amendment right to freedom of expression. The case is still ongoing and it is unclear how long the studios will last.

The challenge to the referendum has two strong main arguments: the First Amendment challenge and what is called a prior restraint challenge. The studios asked the court for an injunction to prevent the law from going into effect until the courts can make a final decision.

The First Amendment argument is essentially saying that because sex in porn is expressive, it can not be restricted except through limited ways. However, supporters of the referendum argue that it regulates the secondary effects of speech rather than the speech itself. The referendum is aimed at preventing sexually transmitted infections that can be spread when making porn, not at the sex itself.

The court denied the studios’ preliminary injunction on this basis. The judge found enough evidence that preventing disease is important enough to satisfy the defendants’ burden. The studios will have a second chance to make this argument if the case goes to trial. However, by denying the injunction, the judge indicates that he does not think the studios will be successful.

The second argument is that the law is invalid because it creates a prior restraint. A prior restraint is when government requires you to seek permission before engaging in protected speech. Prior restraints are presumptively invalid because they chill speech from occurring.

The referendum requires porn studios to apply for a permit before creating any adult films. The judge granted the preliminary injunction against the permit requirement. The judge found that the permit requirement was likely to be unconstitutional because under the law studios could not produce any porn without first applying for a permit.

The judge also found it problematic that the law allowed officials to search porn studio sets without a warrant and authorized revoking a permit if officials suspected a studio of breaking the rules. The judge also granted a preliminary injunction against these requirements.

This decision leaves the condom requirement in place until the challenge reaches its climax but makes it much harder to enforce. The porn industry is certainly big enough to last until the end.

—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He writes a blog on family law and LGBT issues at paul-mcguire.com.

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