Replace that example with another law governing safety on movie sets then.
How so? I didn’t see that in the article you cited.
The notion is that porn buying public really doesn’t like seeing protected sex, and therefore if California - which has pretty strong worker protection - demands the use of condoms, the porn industry will simply pack up and go somewhere where condom use isn’t mandated, and where other workplace protections also won’t exist. Make it a nationwide law, and you’ll just push porn production into other countries, where the worker protections are even lower. Or, you’ll drive porn underground where there is no regulation at all. It’ll all become ‘amateur’ porn with payments under the table or something like that.
The other argument is that professional porn is already under fire from ‘amateur’ porn, and if you force professionals to use protected sex, it will simply kill the industry. But the demand for porn will still be there, so there will still be just as many people having unprotected sex on camera.
The argument is that a legal jurisdiction shouldn’t pass worker safety laws because the industry will migrate to other jurisdictions where people can, with impunity, use unsafe practices? That doesn’t sound like a good argument to me. It could apply to any safety law.
I am asking this question in the context of current caselaw. Even if my own interpretive method would not have gotten us to this point, I am perfectly fine with setting that aside.
I would argue that if your rigorous shooting schedule makes condom use problematic, then maybe a change in the shooting schedule is in order, rather than forgoing the use of the safety feature. I’m sure that the moviemakers could adapt if everyone had to wear condoms. e.g. see post 24 in this thread.
This “greater power includes the lesser” approach has long since been discarded in the context of constitutional rights. As early as 1925 in a case called Frost & Frost Trucking Co. v. Railroad Comm’n the Supreme Court held that “a state is without power to impose an unconstitutional requirement as a condition for granting a privilege.” This notion, now called the unconstitutional conditions doctrine, has evolved, been modified, and now is a complete mess. Suffice to say it is more complicated than “if we can deny it altogether, then we can limit it.” Thus, the government could choose not to build any public housing at all, but if it does, it doesn’t get to condition living there on a waiver of your Fourth Amendment rights. Similarly, the fact that states could ban the production of pornography altogether (a dubious proposition in itself), does not necessarily give them the power to compel certain conduct that might restrict First Amendment rights.
This really resounds with me. The original question is almost irrelevant nowadays. You can regulate the living hell out of the “industry”, but if there is a market for the hardcore stuff, and there ALWAYS will be, there is going to be “porn stars” out there satifying that market.