Unprotected: Condoms, Bareback Porn, and the First Amendment

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 † The author received a law degree from the University of California, Berkeley, School of Law (Boalt Hall) in 2015. As a law student, the author worked as a Teaching Assistant in the First Year Legal Writing Program and served as a Senior Board Member of the Boalt Hall Women’s Association. The author also co-founded the Health Law Initiative, a student organization that partners with the East Bay Community Law Center and Bay Area hospitals to serve low-income populations related to their health, housing, and public benefit needs. She is grateful to Professor Melissa Murray, whose Regulating Sex & Sexuality course provided the impetus for this Comment. She would also like to thank Courtney Fraser for excellent editorial assistance. LANGNER_TO PRODUCTION (EJD EIC EDITS) 199 EDITED (DO NOT DELETE) 7/25/2015 11:29 AM 200 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE 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 unfortunately 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. ABSTRACT 199 INTRODUCTION 200 I. MEASURE B 203 A. Measure B Supporters 204 B. Measure B Opponents 205 II. THE LAWSUIT 207 A. The District Court Decision 208 B. The Appeal 208 III. THE STATE-WIDE INITIATIVE 210 IV. GAY BAREBACK PORN 211 A. Background 212 B. Arguments Missed by the Straight-Focused First Amendment Framework 213 1. Liberating the gay community from the politics of respectability 213 2. Liberating the gay community from the stigma of HIV 217 V. GAY BAREBACK PORN & MEASURE B 220 CONCLUSION 223 199 INTRODUCTION 200 I. MEASURE B 203 A. Measure B Supporters 204 B. Measure B Opponents 205 II. THE LAWSUIT 207 A. The District Court Decision 208 B. The Appeal 208 III. THE STATE-WIDE INITIATIVE 210 IV. GAY BAREBACK PORN 211 A. Background 212 B. Arguments Missed by the Straight-Focused First Amendment Framework 213 1. Liberating the gay community from the politics of respectability 213 2. Liberating the gay community from the stigma of HIV 217 V. GAY BAREBACK PORN & MEASURE B 220 CONCLUSION 223