by Dennis Romero
As we predicted, freedom of speech is shaping up to be a key issue in the porn industry’s fight against mandatory condom use on-set in Los Angeles County.
Smut business titans including Steven Hirsch, chief of Vivid Entertainment, announced that they have filed a lawsuit in federal district court in Los Angeles that says the law, approved by county voters in November, violates porn’s freedom of expression.
The AIDS Healthcare Foundation this afternoon begged to differ:
The organization, which spearheaded the effort to get the mandatory condom measure on the ballot (it passed 57 to 43 percent), predicts that the industry will lose this fight.
Tom Myers, general counsel for the foundation says this in a statement sent to the Weekly and other outlets:
Despite what the adult industry’s lawyers are claiming in this lawsuit, Measure B is not directed at speech, and as such, their First Amendment claims will likely ring hollow with the court. Measure B is about safety in a commercial endeavor. Nothing in Measure B restricts the content of what can be shown … The same reason one requires condoms is the same reason a stunt man or woman would have to use a net, or be tied to a harness.
The suit names Hirsch and performers Kayden Kross and Logan Pierce and plaintiffs. Defendants include the County of Los Angeles, county health director Jonathan Fielding, and District Attorney Jackie Lacey.
According to a statement from the industry lobbying group, the Free Speech Coalition, the measure’s rules …
… place an intolerable restriction on freedom of expression. The lawsuit also challenges the County’s jurisdiction to regulate adult production on performer health and safety.
Some in the business have also questioned whether such a law is constitutional in situations, for example, where a husband and wife want to have sex on camera without a condom: Can the people enforce birth control?
Hirsch of Vivid says:
The new law makes no sense and it imposes a government licensing regime on making films that are protected by the Constitution. Measure B will have vast unintended consequences which may undermine industry efforts to protect the health of our actors and actresses.
He says the industry’s monthly testing protocol (some performers get tested every other week) works and has kept the business safe from HIV, though there have been scares, both in 2004 and again in 2011. Leaders in the business argue that none of those performers who ended up with HIV got it on-set.
The business has argued that customers won’t buy condom porn and that enforcement of the law will force production to leave town.
AIDS Healthcare Foundation president Michael Weinstein:
Unfortunately, the industry has tried everything so far except exploring how they might actually comply with the law.