The “erotic message” of adult films can pass through condoms, holds the Ninth Circuit

Vivid Entm't v. Fielding, No. 13-56445 (9th Cir. Dec. 15, 2014).

In 2012, the voters of Los Angeles County passed an initiative requiring actors in adult films to wear condoms “during any acts of vaginal or anal sexual intercourse.” A number of studios and actors sued to enjoin the new law. The district court refused to enjoin the condom requirement, and this appeal ensued.

The Ninth Circuit assumes, for the purposes of this case, that the condom requirement is a content-based regulation of speech. Even so, the Ninth Circuit says, condomless sex is not the relevant unit of First Amendment analysis. Instead, under a line of Supreme Court cases that address restrictions on strip clubs, the proper unit of analysis, and thus the expression that is allegedly being abridged, is the more general “erotic message” of adult films. As to that expression, the condom requirement is a minimal restriction, akin to requiring exotic dancers to wear pasties and a g-string—a requirement that the Supreme Court has previously upheld. And so the Los Angeles condom requirement also passes constitutional muster, particularly since the regulation promotes the government’s compelling interest in preventing the spread of HIV.