Porn Industry Loses Free Speech Fight In Federal Appeals Court

Two porn companies and a couple of adult film actors faced an enormous setback Monday in their fight against a Los Angeles law that requires adult movie actors to wear condoms.

Those porn makers had argued that Measure B, also known as the "condoms in porn" law, violated their free speech rights under the First Amendment. But a federal appeals court rejected that argument and refused to enjoin the law - or stop it from being implemented - while the porn companies' lawsuit is pending. This doesn't bode well for their efforts to overturn the law.

Voters approved Measure B in 2012, which in addition to requiring condoms also creates a system that requires porn makers to get permits and undergo periodic inspections to ensure actors are wearing those condoms. LA County officials complained after it passed that the law established a whole new bureaucracy, as the Los Angeles Times reported at the time.

The porn industry complained, too. In their lawsuit opposing the law, porn companies Vivid Entertainment and Califa Productions, Inc., and porn actors Kayden Kross and Logan Pierce, claim Measure B violated the First Amendment because it created "prior restraint" on their ability to "create expression."

The plaintiffs here claim the law interferes with their ability to depict sex in a carefree world where people don't have to worry about pregnancy and STDs. From the appeals court opinion on the case:

Plaintiffs submitted declarations stating that condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease. Under this view, films depicting condomless sex convey a particular message about sex in a world without those risks. 

The appeals court, however, ruled that Measure B has only a minimal effect on the film's erotic message, and that the government has a substantial interest in preventing the "secondary effects" of condomless porn. Namely, the court ruled, the government is interested in stemming the spread of STDs among both performers and the general population those performers sleep with.

Moreover, the court wrote, "[W]hatever unique message plaintiffs might intend to convey by depicting condomless sex, it is unlikely that the viewers of adult films will understand that message."

We reached out to a lawyer for the plaintiffs and will update this post if we hear back.