You have badly misunderstood my argument. I do not claim that condoms cannot be mandated. My point is that, as the bill is currently written, it is facially unconstitutional because it singles out an industry, NOT (only) on the basis of its practices, but (also) on the basis of the viewpoint or content of its speech. As any first year law student can tell you, that will not fly. The bill may be easily amended to remove this constitutional defect–and then it would apply universally to any and all filmmakers, artists, educators, etc., that engage in “the representation of sexual intercourse,” or whatever that is supposed to mean.

For First Amendment purposes that is wholly irrelevant. And the fact that an industry can be regulated also entirely misses my point. I agree with you that an industry can be regulated. I agree with you that condoms can be required by anyone filming real sex. However, no industry can be singled out for regulation because of the CONTENT or VIEWPOINT of its speech. That violates elementary principles of First Amendment jurisprudence. You can’t ONLY regulate speech “for the sexual stimulation of the viewer” but allow “educational” or “artistic” films complete freedom to ignore those regulations.

It is absolutely correct that an industry can be singled out. It is absolutely correct that an industry can be regulated, even when it comes to methods of speech production. What the government may NOT do is single out an industry for regulation–ANY industry, ever–because of the viewpoint or the content of that industry’s speech.

Please understand me: It is my opinion that California CAN very well require condoms in porn. But what it may NOT do is allow anyone who wants to shoot a film for purposes other than “sexual stimulation of the viewer” to shoot real penetrative sex, or whatever “representations of sexual intercourse” is supposed to mean in the law, without having to abide by the same safety measures. Put simply: The government cannot selectively impose restrictive burdens on the basis of the speaker’s viewpoint or the content of his speech.

Again, R.A.V. is the controlling case. The government CAN prohibit the burning of crosses when such conduct (itself a form of expression) is likely to promote violence. The government MAY NOT prohibit the burning of crosses ONLY when it is likely to promote violence because of the particular viewpoint or content of the speaker (in that case, on the basis of race, creed, or gender). The law in that case was found facially unconstitutional, and the person convicted under it was absolved, because the law tried to single out speakers on the basis of the content of their speech. If the legislature had simply prohibited the burning of crosses when such conduct is likely to incite violence, then his conviction would have stood. But because the legislature took the further step of ONLY prohibiting racially motivated cross-burning, or gender-motivated cross burning, etc., the entire law was rendered invalid.

I hope that clears things up for you. My position, you will see, is not the same as the FSC’s. I agree with you that California has the power to require condoms. It just can’t ONLY require condoms for those people whose speech is “for the sexual stimulation of the viewer”. That invalidates the entire law, just as it did in R.A.V.

@Alex everyone on a film set runs the risk of tripping over a light stand, it is only the people who WORK WITH THEM ALL THE TIME who are obligated to wear steel toe boots. Does this mean the electrics and grips are having their rights infringed on? No, of course not. It is risk based. Porn stars, by definition, have sexual intercourse ALL THE TIME which puts them at a higher risk than actors who do the odd kissing scene or even an on screen blow job once in their career.

@Alex. In industry there are different regulations that apply to different industry due to the risks in the various industry. It is not uncommon at all for an industry to be singled out with a regulation. Just in the film industry there are all kinds of different regulations that apply to different people depending on their job description. Some people need steel toed boots, others need hairnets, yet others need paint masks. So I don’t think it is in anyway unconstitutional to force porn producers to force porn stars to use protection when plying their trade at the behest of the producer. Thinking this thing will go down on constitutional grounds is just wishful thinking and perhaps a way to line the pockets of a few lawyers.

@jilted the technique used to make a film are not free speech. The final product is. Not at all the same thing.

I think the ‘First Amendment’ argument is a red herring since it will not apply. ‘The for the purpose of….’ is simply a description of the activity at hand ie the production of pornography. This is, in the lawmakers view, a workplace safety issue and a director cannot have a performer engage in unsafe activity at work without taking all reasonable precautions. I think any court will determine a condom to be a reasonable precaution.

I think the constitutional argument is an act of desperation that is bound to fail. If the industry wants to fight this they’ll need to find something better. What? i don’t know. Should they? I don’t think so.

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