The city council of Los Angeles and Mayor Antonio Villaraigosa have passed an ordinance requiring pornographic actors to wear condoms during filming. For the president of the AIDS Healthcare Foundation, Michael Weinstein, the law's passage represents a victory for public health and the first step towards state-wide legislation. After a few high profile cases of actors testing positive for HIV, Weinstein and others have argued that the pornographic film industry's policy of HIV and STD testing in general is insufficient. They would like to see law enforcement and the machinery of workplace safety agencies (including random inspections) implemented to ensure compliance with the new law.
The industry largely opposes the new law and promises to provide stiff opposition. Many adult film companies fear that requiring condom use will hurt consumer ardor for their product and have threatened to pull out of Los Angeles in order to shoot somewhere else. If the measure survives legal challenges (it might be a big “if”) then it is likely a Pyrrhic victory for Michael Weinstein and the AIDS Healthcare Foundation.
Industry representatives have suggested that they would relocate studios to nearby Nevada or elsewhere. Attorney Marc J. Randazza of Nevada tells the Los Angeles Times that a district attorney might be reluctant to prosecute a pornographic film company in a state where prostitution is legal in certain areas (pornographic film making can be construed as a form of prostitution). Michael Weinstein feels that the such a move is unlikely, but the AHF has vowed to follow them if they relocate. The AHF is not without a paddle; legal prostitution in Nevada does mandate the use of condoms, and it is not a stretch to apply the law to cover pornographic films.
However, Nevada is not the only option. Other states may welcome the pornographic movie industry by accommodating their desire for condom-less production. A cottage industry approach would also allow for furtively produced pornography without condoms. So far, California has been a natural home for pornographic film studios and not simply because it has been a home for movie studios and aspiring actors in general; the California Supreme Court is one of the few that has upheld the production of pornography as constitutionally protected expression (and not merely a form of prostitution) whereas the issue has not been tested in many states. That could change. Mainstream film companies have already relocated much of their production to places outside of Hollywood, and it is not hard to imagine a similar migration for adult film studios looking to avoid a condom mandate. Weinstein and the AHF seem committed to follow them to any part of the country.
Their uncompromising position suggests that the health and safety of porn actors and the people with whom they have sex are not the only consideration. After all, promiscuity and unprotected sex are not exclusive to porn actors and sex partners (a very small fraction of the population), and pornography can be produced by a highly monogamous married couple (isn't that redundant?) in their own home where a condom mandate replete with random OSHA-style inspections would seem uncommonly silly.
Condom-mandate advocates are using the rhetoric of public safety as a thin cover for the real meat of their argument; the AHF intends to use legal compulsion to draft an unwilling industry into a campaign to promote condom usage amongst consumers of pornography and not merely those who are employed in it. Weinstein and others hope that by attempting a virtual ban on films featuring unprotected sex that the undesirability of condom use will decline and that usage will increase amongst the general population when prophylactics are glamorized on film.
Of course, they do not advertise this paternalistic motive. Public support would fade and First Amendment challenges would be inevitable. Hiding behind a narrower public safety argument (the safety of workers in an industry) allows them to deflect accusations of trying to change the content of what the California Supreme Court deems protected speech. This effort parallels attempts by some to erect obstacles to mainstream films where actors smoke, but those advocates cannot hide behind arguments related to the health and safety of actors who smoke. It is perhaps for that reason that they only argue for restricting minors from seeing such films.
Consider Weinstein's skepticism of pre-exposure prophylactic pharmaceuticals for HIV prevention: “As a gay man, I believe this would be a catastrophe for HIV prevention... If this pill were approved by the FDA, why would those [HIV negative] men keep wearing condoms?” His argument parallels one that was employed against the efficacy of the HPV vaccine: “If teenage girls get the HPV vaccine then why would they abstain?” Weinstein and other social liberals have become scolds and busybodies. They have created a cult of contraception as religious conservatives once did with female chastity.
The cultural Left has long desired greater government intervention in the realm of promoting contraception, but Americans would generally oppose infomercials and public awareness messages for the promotion of condoms (or birth control pills). A condom mandate for adult films is a terrific Trojan horse.