A sticky constitutional issue, implicating the First Amendment rights of the filmmakers, the Fourteenth Amendment due process rights of the actors, the generalized constitutional privacy rights of the actors, and who knows what else.
An AIDS testing clinic in California that specialized in porn actors has shuttered its doors. The facility had offered an on-line database that allowed directors to verify that the performers they were using had current clean test results, but with the clinic closed, directors are forced to rely on printouts, which (presumably) can be faked.
This has caused one AIDS-fighting organization to renew its call to force porn actors to use condoms. They say the benefits would be dramatic – apart from safety for the performers, the universal use of condoms in porn would be an excellent message to the viewer, making the public (or at least the porn-viewing portion of the public) more sanguine about condom use. They say, further, that legally speaking, the California local health department can legally enforce this mandate, citing federal law concerning exposing workers to bloodborne pathogens.
I don’t see a legal problem with it. If the government can mandate hard hats, I think they can mandate soft ones on the job. I don’t think they should, though.
When inoculations are required, there usually a religious exemption included. I don’t think it is constitutionally required to be there, though. And would probably undermine the effectiveness of a condom required law.
There’s no First Amendment expressive issue in construction workers’ bareheaded construction work. A porn filmmaker is clearly producing an expressive piece, and his right to do so is encumbered by a condom requirement.
I don’t know that it’s really doable from a practical standpoint. If Los Angeles County does something, the porn industry will just stop filming there.
To a certain extent, I think commercial porn is a dying industry anyway. Why pay for porn when there’s an internet full of anything you can imagine available for free?
The First Amendment argument is very interesting to me. I don’t think they could make mainstream movies use obviously fake guns without infringing on artistic freedom, and the same should, arguably, hold for porn. The actors are all adults, able to freely contract for their working conditions in arms length negotiations. Unprotected sex is not illegal between consenting adults. I suppose a counter-argument could rehash the “no First Amendment protection for obscenity” argument, but that opens the floodgates to more obscenity litigation…and most porn isn’t obscene under current law as I understand it.
If a director can require that actors play characters that smoke or stunt performers engage in somewhat risky behaviour and their consent is fully informed, I don’t see a problem with a no-condom policy for porn actors. I figure the onus on the director is to demand health checks of the performers with the understanding that nobody with a communicable disease will be allowed to put other performers at risk.
True, but there is a utilitarian concept at work. The performers and their health is one thing only they get to judge, but what of the viewers ? People, especially teenagers, are influenced and tend to reproduce what they see on TV. Teenagers look up porn like it’s an extinct species. Therefore, teenagers will likely be exposed to depictions of unprotected sex, and from them assume “well, pornstars are sluts and they don’t use protection, so I’m OK”. Which leads to VD and teenage pregnancy.
FWIW, I believe this is the rationale behind the unwritten rule that says all porn flicks broadcast on French TV must involve protection. Unprotected porn exists and is free for sale, it’s just not shown on TV. Of course with the Internet that’s sort of moot now…
My impulse is to say that the government can and should as a public health issue. But given the huge amounts of amateur porn being produced by people I can best describe as delusional nitwits, there may not be a point.
Having worked as a stagehand, there are clearly long lists of precautions, cautions, can’t-dos and don’t even think abouts that apply to stage productions. For example, light a cigarette on stage? Not unless the fire marshal says it is okay.
Why would First Amendment protections apply to adult films, but not to the theatre? Is the videography of penises due more protection under the First Amendment than is the traveling off-off-Broadway musical production, “David Berkowitz’s Spontaneous Combustion Follies and Incendiary Revue?”
I’ve always wanted to use that last line. At least since I thought of it a few moments ago.
We’re talking about state governments here, not federal, right? Because many states already disallow making porn movies entirely. If they can completely prohibit an activity, then surely they can also allow it, but only subject to certain conditions.
Obscenity law is a complete clusterfuck, and I’d argue pretty much unconstitutional itself. But yes, you are right, most porn isn’t found to be obscene under current law. What I find interesting is that I don’t see how you could do this with current obscenity laws - nothing is obscene when made, as one of the prongs of the obscenity test is the standards of the community concerned, and that happens when it is distributed. As long as the act itself isn’t illegal (animals/kids), you can film anything you want. It is only when you come to market it you can get into trouble. I don’t think it would be possible to argue that sex with condoms isn’t obscene, and sex without condoms is, especially given that the jurisdictions the Feds decide to use to bring obscenity cases and wisely and responsibly spend our money tend to be the most socially conservative ones, and therefore more likely to be anti-contraceptive use.
I guess you could make an argument that using condoms in porn adds an educational element otherwise absent, which would remove one of the other prongs of the obscenity test (no artistic/scientific/educational merit from memory). But I really don’t see that as flying either.
Unfortunately, it would reduce suck the raison d’être out of “money shots”, and the profitability of porn along with it. Based on my porn viewing experience, any starlet that makes it all the way through the picture without a pearl necklace leaves the viewer hanging, so to speak.
Could they? It seems to me that they could only ban the use of live ammo while filming in places where nobody is allowed to use live ammo. No equivalent situation exists for having sex without a condom.
