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- Title
Unprotected: Condoms, Bareback Porn, and the First Amendment.
- Authors
Langner, Bailey J.
- Abstract
In November 2012, Los Angeles County voters passed Measure B, or the Safer Sex in the Adult Film Industry Act. Measure B mandated condom use by all porn performers in adult films produced within county borders and created a complex regulatory process for adult film producers that included permitting, mandatory public health trainings, and warrantless administrative searches. Shortly after its passage, Vivid Entertainment filed a lawsuit to enjoin the enforcement of Measure B, arguing that the Measure violated their First Amendment right to portray condomless sex in porn. In December 2014, the Ninth Circuit upheld the district court's decision upholding the constitutionality of Measure B. Notably, the mainstream discourse surrounding the Measure B campaign, as well as the legal arguments put forth in the lawsuit, focused exclusively on straight pornography while purporting to represent all porn. As a result, an entire genre of condomless pornography went unrepresented in the discussion: bareback porn, which portrays intentional unprotected anal sex between men. Excluding bareback porn from the lawsuit represented a missed opportunity for Vivid in its challenge of Measure B. There are several political messages underlying bareback porn unique to that genre that might have resulted in the Ninth Circuit applying strict scrutiny instead of intermediate scrutiny, and might have ultimately helped Vivid successfully defeat the Measure. Now, if the condom mandate is extended statewide, as the Aids Healthcare Foundation hopes it will, producers of bareback may un fortunately be without recourse--it seems unlikely that a court would extend First Amendment protection to bareback pornography after declining to extend protection to straight condomless pornography.
- Subjects
LOS Angeles County (Calif.); UNSAFE sex; CONDOMS; PORNOGRAPHIC films; PUBLIC health; HUMAN sexuality in motion pictures; LAW
- Publication
Berkeley Journal of Gender, Law & Justice, 2015, Vol 30, Issue 2, p199
- ISSN
1933-1045
- Publication type
Article