9th Circuit Upholds Condom Law for Porn

PASADENA, Calif. (CN) - Porn star Kayden Kross on Monday lost her bid to overturn a Los Angeles County law requiring actors to wear condoms, when the 9th Circuit ruled that the law does not violate her constitutional rights.

Vivid Entertainment, Califa Productions, and porn actors Kross and Logan Pierce sued the county in January 2013, claiming the L.A. County law, approved by voters two years ago, violates their free speech rights.

Measure B also requires porn actors in Los Angeles County to take blood-borne pathogen training to reduce the spread of sexually transmitted diseases, and pay a $2,000 to $2,500 fee to the L.A. County Department of Public Health for a film permit.

A film permit may be revoked if actors or producers violate the law. Violators may face fines and criminal prosecution.

The AIDS Healthcare Foundation, official advocate of the ballot measure, intervened in the lawsuit after the county said it would not defend the law.

U.S. District Judge Dean Pregerson ruled last year that some parts of Measure B, the Safer Sex in Adult Industry Act, are unconstitutional.

But Pregerson stopped short of striking down the condom requirement.

Pregerson agreed with the actors and filmmakers that the enforcement provisions are too sweeping - including powers to revoke permits, conduct warrantless searches of film sets and charge fees for permits.

But the condom law helps protect against sexually transmitted diseases in a "direct and material way," Pregerson ruled.

Finding the porn makers' First Amendment claim "unlikely to succeed on the merits," Pregerson denied a preliminary injunction.

In filing an appeal last year, the actors and filmmakers argued that because Pregerson had found certain parts of the law unconstitutional, the whole thing should be invalidated.

But on Monday, 9th Circuit Judge Susan P. Graber declined to reverse, finding that Pregerson was right to find that certain parts were unlawful while other parts were not.

Graber wrote for a unanimous three-judge panel that Pregerson had properly denied an injunction against the law on First Amendment grounds, finding the plaintiffs' free speech claims unpersuasive.

"The condom mandate 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," Judge Graber wrote.

The appellants argued that forced use of condoms in porn movies interferes with their free expression because use of the contraceptive on screen would remind audiences "about real-world concerns such as pregnancy and disease."

But Graber said she found it unlikely that audiences would "understand that message."

Citing the U.S. Supreme Court ruling in City of Erie v. Pap's A.M., Graber said that pornographic films' "erotic message" applied to the freedom of expression concerns in this case.

In Pap A.M. the Supreme Court found that a law requiring strippers to wear pasties and G-strings did not chill their speech.

Graber found that the condom law would have a minimal effect on the artists' expression in making their films.

"On its face, Measure B does not ban expression; it does not prohibit the depiction of condomless sex, but rather limits only the way the film is produced," the judge wrote in a footnote.

The plaintiffs claimed the industry was doing just fine regulating itself and was doing enough to protect performers by regularly testing for STDs.

But Graber found that Pregerson was correct to find that the government had an interest in protecting public health, because government data showed an increased risk of infection from sexually transmitted diseases among porn actors.

Judges Alex Kozinski and Jack Zouhary joined the court's unanimous decision.

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