If you look at the actual bill that is now in the legislature there is a heading under the word “Version” that says “Introduced” That is the form that the bill is now . Virtually all bills are not passed as they are introduced, parts are added, deleted, and modified, and I have little doubt that the changes that need to be made to this bill will be done before the final version is passed

And in case my murder example was too complicated, let me say it again in a more abstract way. The government may not pass ANY law of ANY type which punishes or restricts only those speakers that are trying to communicate a particular viewpoint. NO law. Doesn’t matter what law it is–workplace safety, criminal law, tax law, etc. DOES NOT MATTER. If the First Amendment means anything, it means that the government cannot selectively punish people for their beliefs or for the viewpoints they seek to communicate.

The only time the content of speech can be punished is when it already falls within one of the very few categories of speech excluded from First Amendment protection–obscenity, fighting words, child porn, etc.

Again, I’m afraid I must tell you, BT, that I agree with most of what you say, and that most of what you say is 100% correct.

However, what you say is also 100% irrelevant to the precise legal issue that I have been at pains to point out.

Your remarks on obscenity are largely correct and I agree. But obscenity is irrelevant. We absolutely DO have a First Amendment right to produce porn–as long as it’s not obscene. And until there is a controlling Supreme Court (or at least California) case declaring all porn obscene, the government may not assume that any instance of speech is obscene. Obscenity is a crime and it would obviously violate due process rights if speakers were *presumed* by the government to be criminals before they even had a trial.

I agree that the production of sexually explicit speech can be regulated (2257, condoms, etc.). But that, too, is 100% irrelevant. I keep saying–fruitlessly, it seems, since you don’t seem to be hearing me–that I AGREE that the production of sexually explicit speech CAN be regulated. Condoms CAN most likely be mandated. That has nothing to do with the issue of whether any given law is impermissibly content- or viewpoint-based, however.

Since my efforts so far have failed, allow me to try this one last time, this time with a very blunt example.

We all know and agree that the government can prohibit MURDER. No problem there. We all know and agree that the government could, if it wanted, create a special penalty for murder that, lets say, arises as a result of a heated argument. (Lets just assume there is some legitimate reason for such a law.)

So far so good. But what the government may NOT do–never do–is pass a law creating a special penalty for murder that arises from a heated argument, but ONLY when the person committing the murder was trying to communicate a left-wing viewpoint, or a christian message, or a conservative idea. THAT makes the law impermissibly content-based and it would be struck down by any remotely intelligent appellate court.

So you see: If a prohibition on MURDER can be struck down when it’s impermissibly content based, then why do you think a workplace safety law could not? Of course it will be struck down. Honestly, the law is the kind of example that law students PRAY will be on their con law exam, because it’s so obvious and easy.

You seem to view this issue in terms of costs and benefits, risks and dangers, etc. But when it comes to this kind of bedrock principle of constitutional law, there is no cost/benefit analysis. Again, I refer you to the words of our (convervative!) Chief Justice:

“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.”” United States v. Stevens (2009).

The conservative character of the Court also doesn’t seem to matter–the two Justices I’ve quoted most often have been Roberts and Scalia.

I might also point out something funny in this discussion we’ve been having. Twice you’ve said something about someone needing to film condom-less sex in order to fulfill an artistic vision. Well, under 332 as it is currently written, if a speaker could prove that his film was NOT “for the sexual stimulation of the viewer,” but was instead for the artistic edification or aesthetic fulfillment of the viewer, then 332 would NOT apply! The law is very explicit and clear about that. It ONLY applies to speech that is for the sexual stimulation of the viewer.

And that, my friend, is precisely why the law is unconstitutional on its face.

The First Amendment does not protect obscenity. Now, I will agree that no one has defined obscenity on a national basis and there’s whole community standard thing which has hung the government up. But it is not an absolute right. Just ask Rob Black, Max Hardcore or that Ira guy in LA.

So, while the limits of what is and isn’t fair game may be murky, we know that there are some limits to what can and can’t be produced if the right prosecutor in the right locale decides to pitch a fit.

What’s more, it’s apparently legal to regulate the production of porn. Or at least the industry has not chosen to challenge the laws on constitutional grounds. Most states except for California and New Hampshire have outlawed its production in their borders.

The government already regulates some aspects of porn, such as record keeping. Heck, its illegal to sell sex toys in a number of states.

For one of us to be right, both a state and the industry have to be willing to pick a fight and take it all the way to the Supreme Court. I for one would not be sanguine that a conservative court like the current one is going to overturn a condom law if the argument is that the only way a pornographer can realize their artistic vision is to film any act they wish without condoms while exposing the actors, the crew and their family and loved ones to potentially life threatening diseases. The argument that the industry often makes – the public doesn’t like it – isn’t a constitutional argument.

It is my opinion, yes, that the government can regulate the production of sexually explicit speech. I don’t think this raises any real constitutional issue. 332 is fatally defective only because they went out of their way to make it apply ONLY to people with a certain message to tell. If they make it apply to everyone engaging in the production of sexually explicit speech, then I think it is much more likely to be upheld.

The only other place where the law seems very peculiar is in the definition of the speech itself. “Representation of sexual intercourse.” What on earth does that mean?? Hardcore, sure. But softcore? Breast groping? Kissing? Fetish? Spanking?

The law would probably need to be fleshed out–either by the legislature or else by the courts. As it is now, no one has any clue how broadly the law applies.

Alex, I think we share the same frustration. What happens on a porn set is obviously an imminent danger to the performer, regardless of the message of the created speech. And these dangers occur BEFORE anybody has viewed the created material, so of course the reaction of the viewer is irrelevant to the action that causes the imminent danger.

So my question is, if the definition in this proposed legislation is changed, do you see any other possible constitutional challenges to this law? And as you stated, do you think the government would have any problem showing ‘possible danger sometimes,then it can regulate the production of speech.” I think the government would have no problem proving this, I am just wondering if you agree? And again, thatnks for your responses.

Yes of course, and forgive me if my exasperation shows through, lol, but it seems I’m still not being understood. The government does NOT need to show imminent danger at all to regulate the production of sexually explicit speech. It can just say, “Oh here’s a problem, we’ll regulate it through workplace regulations.” No problem. What it may NOT do is say, “Oh here’s a problem, but we’ll ONLY regulate this problem when the speaker has an anti-religious message to tell,” or whatever viewpoint you want to put into the blank.

Alex, isnt imminent danger during production EXACTLY what OSHA regulations cover? Do you think the government would have any problem showing the imminent danger to the emplyees on the porn sets?

Once the language of “stimulationof the viewier’ is removed, do you see any other constiutional problems with this law? Your insightful opinions are much appreciated.

Sure, but that isn’t the point of that doctrine, which only deals with the effect of the speech on the *recipient* or audience of the speech.

In other words, the government does not need to show imminent danger in the PRODUCTION of sexually explicit speech. If it can show just possible danger sometimes, then it can regulate the production of speech, no problem. But what it may NOT do is choose to regulate ONLY the speech with a certain message to tell. It has to regulate everyone engaging in the harmful behavior–it can’t say, “Only people with a conservative message to tell have to follow the law.”

Couldnt it be argued that the exposure to OPIM, which is the very heart of the porn production(semen in the mouth) is likely to cause immedeate harm to the performer. Could it not be argued that semen, ejaculated directly into the rectum, mouth, vagina, eyes,ect., could cause immedeate harm?