Even though many adults in non-monogamous relationships are using condoms, the porn industry has long held that using the prophylactic devices in sex scenes is a buzzkill. And in recent years porn auteurs have argued that laws mandating the use of condoms on XXX sets is a violation of the First Amendment. But yesterday, a federal appeals court said a rubber requirement isn’t enough to claim restriction of free expression.

The 2012 County of Los Angeles Safer Sex In the Adult Film Industry Act (better known as “Measure B”) requires the use of condoms when shooting actual sex scenes anywhere in the massive expanse that is Los Angeles County.

The adult industry — led by the Vivid Entertainment studio — has been fighting the regulation, arguing that it’s a case of prior restraint; that the county is prohibiting the filmmakers from fully expressing themselves under the belief that unprotected sex might negatively impact the public health of Los Angelenos.

In 2013, a U.S. District Court issued a preliminary injunction against some of the enforcement and fee-setting provisions, but allowed the core of Measure B — the condom and permitting requirements — to remain.

Vivid appealed to the Ninth Circuit, not only claiming First Amendment violations, but also arguing that because the lower court severed some portions of Measure B, it should have struck down the entire ordinance.

The appeals panel quickly dismisses [PDF] that argument, writing that “courts must respect the laws made by legislatures and, therefore, should avoid nullifying an entire statute when only a portion is invalid.”

This is especially true with Measure B, explains the court, as it contains a severability clause that explicitly states that just because one provision may be stricken, “the remaining provisions shall not be affected, but shall remain in full force and effect.”

As for the claim that the condom mandate restricts porn artists’ free expression, the court says that the requirement “survives intermediate scrutiny because it has only a de minimis effect on expression, is narrowly tailored to achieve the substantial governmental interest of reducing the rate of sexually transmitted infections, and leaves open adequate alternative means of expression.”

So basically, because it doesn’t prevent performers from still making explicit movies, it is not a prohibition of their Constitutional rights.

To back up its opinion, the court cited the 2000 U.S. Supreme Court ruling in Erie v. Pap’s A.M., in which a Pennsylvania strip club attempted to fight a local ordinance banning public nudity.

In that case, SCOTUS held that, because the law in question allowed dancers to dance while wearing only pasties and G-strings, it was a “minimal restriction in furtherance of the asserted government interests” that “leaves ample capacity to convey the dancer’s erotic message.”

Interestingly, L.A. County is not the party trying to defend its own statute. Early on, when Measure B was first appealed, the county said that it would not fight an appeal but that it would enforce the ordinance if the court said it passed legal muster. And so it was the measure’s private sponsors who chose to fight the appeal on behalf of the county.

The question is now whether or not the county will actually enforce Measure B, which some opponents view as an extravagant use of county resources and funds. If so, the L.A. porn industry could move elsewhere, though a larger statewide condom requirement looms in the California legislature.

[via National Law Journal]

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