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Vivid Entertainment and other producers of adult erotica have been denied its latest attempt to halt the enforcement of a voter-initiated law that requires that porn actors wear condoms. On Monday, the 9th Circuit Court of appeals rejected First Amendment arguments brought by the adult entertainment industry and affirmed a lower court’s ruling.
In 2012, the L.A.-based AIDS Healthcare Foundation pushed the law (Measure B) in response to word by the city’s health department of the widespread transmission of sexually transmitted infections among workers in the adult film industry. The eventual law also contained permit conditions with collected license fees going to periodic inspections of sets to monitor compliance.
In today’s opinion (read in full here), the 9th Circuit agrees with a lower court that intermediate rather than strict scrutiny was appropriate to analyze the law under the First Amendment. Although the entertainment industry is content based, which usually gathers strict scrutiny, the 9th Circuit points to an exception when ordinances regulate “speech that is sexual or pornographic in nature” and when “the primary motivation behind the regulation [is] to prevent secondary effects.” A law that regulates sexual speech intended to prevent STDs fits the exception.
The panel at the 9th Circuit looks at porn films (not literally) and the messages intended by the expression.
Vivid and other plaintiffs attempted to argue that condomless sex conveyed a particular message about sex in a world without risks like pregnancy and disease.
“To determine whether conduct is protected by the First Amendment, we ask not only whether someone intended to convey a particular message through that conduct, but also whether there is a ‘great’ likelihood ‘that the message would be understood by those who viewed it,’ ” writes 9th Circuit Judge Susan Graber. “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. So condomless sex is not the relevant expression for First Amendment purposes; instead, the relevant expression is more generally the adult films’ erotic message.”
Having so decided, and further concluding that the condom mandate is a de minimis restriction akin to ordinances that require strippers to wear pasties-and-a-G-string without interfering with strippers’ speech, the 9th Circuit upholds it as furthering a legitimate purpose. The appellate court also rejects the adult film companies’ argument that it’s not narrowly tailored and ineffective because porn films can travel across county lines without the restriction.
“The regulation need not be the most effective way to achieve the government’s substantial interest, nor must it be shown that the regulation cannot be circumvented,” writes Graber. “Rather, it suffices if the regulation helps to achieve the substantial government interest effectively.”
The 9th Circuit further allows the permitting requirements to stay in place, rules it has jurisdiction in the matter, and agrees that the district judge’s decision to strike a small portion of the law aimed at defining an “adult film” shouldn’t be a roadblock in the enforcement of the law — that it’s properly severable.
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