Cornell Attorney Dissects Free Speech Implications of Measure B

LOS ANGELES—In an article published today on the legal website, attorney Antonio M. Haynes reflects on how difficult it would be for Measure B to survive a First Amendment challenge, though not for the reason usually cited by industry legal scholars.

Though somewhat similar to the objection regarding "forced expression" that FSC CEO Diane Duke stated in her letter to the LA County Board of Supervisors, Haynes' argument is essentially a simple one: Since non-obscene, non-child porn is completely legal in the United States, any adult movie is entitled to legal protection. And since it is well-established law under several Supreme Court rulings that the government may not engage in content-based restriction on sexual speech unless there is both a compelling governmental interest in doing so, and such interest must be narrowly tailored to accomplish the goal the government has in mind. In other words, Measure B, which forces adult producers and performers to "speak" through the universal use of condoms, latex pussy protectors (dental dams), latex gloves, goggles and face shields, must survive what the law refers to as "strict scrutiny"; basically, the two hurdles mentioned above.

"As the Supreme Court recently reiterated, this standard requires that the government must identify an 'actual problem in need of solving,' and the curtailment of speech must actually be necessary to the solution," Haynes wrote. "The standard is demanding, and thus content-based distinctions rarely survive...  By its own terms, therefore, the Act does not apply to obscene speech, but instead only to protected sexual speech. Thus, the imposition of civil and criminal penalties depends solely on the content of the adult film at issue. Only films depicting vaginal and anal sex without a condom are subject to regulation."

"Undoubtedly, stemming the widespread transmission of communicable diseases, particularly HIV, is a compelling governmental interest," he continued. "However, strict scrutiny requires that the legislature identify an 'actual problem' in need of solving. Since 2004, more than 350,000 sex scenes have been shot without condoms, and there has not been a single instance of HIV transmission on set. These impressive statistics are likely due to the adult film industry's self-imposed testing regime. Before each scene, adult film stars must prove that they have tested negative for HIV within the past 15 days...  But even if we assume that STD transmission on adult film sets is an 'actual problem,' it is unclear whether the Act is narrowly tailored. Narrow tailoring requires that no more speech than is necessary be curtailed. In this instance, the Act makes subject to civil and criminal penalties all sexual speech in which a condom is not used. A required testing regime, much like the one the industry has imposed on itself, would achieve the same ends without curtailing any speech."

Certainly, since Measure B would require women who put on webcam shows from their own homes to both obtain a public health certificate and, if their show involved a partner, perhaps a husband or girlfriend, the "barrier protection" requirement would kick in as well, even though the two (or more) partners may have unprotected sex with each other on a regular basis without a condom or any other barrier, the law is clearly overbroad when applied to that sort of situation.

But Haynes sees yet another reason for Measure B to be struck down: What he refers to as the "dignitary interest" of the performers.

"Although these [adult] performers are taken less seriously than more mainstream actors and entertainers, adult film stars provide a service that some 40 million Americans openly admit to regularly enjoying," Haynes observes. "The actual numbers are almost undoubtedly higher. While few Americans have as many different sexual partners as the average adult film star, the fact that there are humans at all is by itself compelling evidence that people do not use condoms during every sexual encounter. This unprotected sex, moreover, often occurs in situations in which the participants have much less information about their sexual partners than adult film stars do. It may be awkward to exchange proof of HIV results on a first date, but it is not at all awkward—and usually de rigeur—to do so on an adult film set."

Haynes goes on to hypothesize a statute which makes it a criminal offense, punishable by fine and/or prison, for two unmarried adults to have unprotected sex, as might happen if two people were to meet at a bar or other gathering and decide to go home and screw each other's brains out. The alleged intent of the statute would be to prevent the spread of STDs, and in Haynes' words, "perhaps force partners to have more honest conversations about the risks associated with their sexual activity."

"I have no doubt that such a statute would be voted down at the ballot box," Haynes continues. "Most people would find the hypothetical statute to be a tremendous violation of their sexual freedom, even if they could not precisely articulate a reason why. And indeed, even if a court eventually sustained the hypothetical statute against a constitutional challenge, I have no doubt that a legislature would eventually repeal it. One reason might be that the hypothetical statute would deprive individuals of the dignity of risk. Human interactions, particularly sexual ones, are filled with risks, whether emotional or physical. To deprive single individuals of the ability to navigate these risks on the same terms as married individuals would be a denial of the single individuals' dignity."

It's an interesting argument, to be sure, but it seems possible that a court would find that, in a commercial setting like a porn set, the concept of "sexual risk" is not the same as it would be for two (likely untested) individuals who meet in a bar and later have sex—and would the legality of the statute hinge on whether or how often those bar patrons had been tested?

In short, Haynes raises some interesting legal questions regarding Measure B, and it's likely that when the adult industry does file its lawsuit against the measure, some or all of those arguments will be included in the complaint.