And just to be absolutely clear about my James Deen example, since I think I might be on to where the misunderstanding lies:

If a producer or director tells James Deen, “You will wear a condom in this shoot or you’re fired,” then that’s a creative difference. Nothing to do with the First Amendment.

If the GOVERNMENT says to James Deen, “You will wear a condom in all scenes or you will be fined or jailed,” then that’s a First Amendment issue, and possibly an infringement of his rights.

Two completely different scenarios. The former need not ever be discussed in this condom debate. Only the government can infringe your First Amendment rights.

I still think you have too rigid a notion of the actor as someone-hired-to-realize-someone-else’s-vision. James Deen is absolutely right that forcing him always to wear condoms does limit the possibilities of expressive sexual speech that are available to him. To just put this into sharp relief, I would point out that I have produced a few hardcore movies/scenes myself, and sometimes I have asked the actors to use barriers, and sometimes I have left it up to them. If James Deen comes on a set, and the director says, okay, this is generally how the scene is supposed to go, I’ll leave the rest of it up to you guys (which is quite common in porn, actually), then by forcing him and all other performers to ALWAYS use condoms they are clearly limiting the expressive possibilities of the performers. Performers are NOT simply there to realize someone else’s vision. Acting is also about artistic expression in its own right, and in porn this is especially true, where so often the actors are really given license to make all sorts of creative choices.

I don’t think your chef analogy is appropriate, because I am not aware of any court case ever (though I would LOVE to know if there is one out there) where cooking was determined to be speech. Moreover, my HUNCH is that if a chef is forbidden to use certain ingredients, it’s because those ingredients are banned from use all the time. Again, the difference here is obvious: it is NOT illegal to have unprotected sex. The government is trying to make it illegal ONLY in the context of a very specific type of speech production. That necessarily raises very real First Amendment concerns. Again, I’m not saying that the free speech concerns necessarily trump everything else–but so far I don’t think any of your analogies really fit. This is a SPEECH situation involving conduct that is generally speaking perfectly legal. Unlike robbing a bank or cutting off a limb or cooking with an ingredient that the FDA has deemed unsafe. You don’t think that should change the First Amendment calculus?

What I’m saying is that if he is hired as an actor – he is not the writer or director – he is hired to play a part. If he is an actor who expresses himself through his performance and the part requires him to perform with a condom, then he figures out how to express the part with a condom. That’s what he’s hired to do.

If he wants to argue that he is a writer and director who wants to create projects that express his worldview of the joys, sorrows, or unbridled passion of condomless sex, then yes, condoms restrict his ability to express that point of view. But as an actor, no. Actors are hired to play parts. They help the director realize their vision.

In that regard, asking an actor or actress to perform a specific act is no different. They are being hired to play a part – in an all anal film, its a part that requires anal sex. In a film that requires condoms, it’s a part that requires a sex act with a condom.

If an actor’s refusal to perform anal sex is creative differences – and I happen to agree with you on that – then an actor’s refusal to perform with a condom is also a creative difference. The actor is hired to play a part, the part requires a thing – anal sex, vaginal sex, get electrocuted in the Kink dungeon or wear a condom. If the actor doesn’t want to do it, they can refuse and its a creative difference.

For the writer and director, it’s a different story. There is no question but that their ability to write and film a condomless scene is infringed upon. And, then it’s a question of whether the government thinks that health and safety in this instance – since the act is real and not simulated – trumps creativity.

Here’s another way to look at it if you don’t like the others.

In America, and other parts of the world, we celebrate top chefs as culinary artists. I think there are few of us who could argue that a truly talented chef doesn’t express himself or herself through their cooking. Alice Waters, for instance, changed the way many Americans think about sourcing food locally through her cooking in San Francisco.

However, their are food ingredients that it is illegal to import and serve to Americans. Certain types of blood sausage, for instance.

As an artist, is the ban on certain types of foods for public health reasons an infringement of Alice Water’s First Amendment rights as a chef to create any dish that she can envision. After all, its perfectly legal in Europe. What if she has envisioned a new dish that she believes is the pinnacle of her career with a central ingredient of blood sausage.

Or, do you argue as the public health department argues: sorry, the risk to public safety in this case is greater than the pleasure one gets from eating blood sausage. You need to find a substitute for the dish.

They’re similar situations.

I agree with what you say about the breadth of the dog fighting case–I didn’t refer to that as any kind of proof that condomless sex is necessarily going to be protected by the First Amendment, but just as another example of how these issues are frequently very complex. But again, I must say that I think the example of someone filming a robbery–or even a dogfight!–isn’t a good analogy, because there is nothing illegal about two adults having unprotected sex, whereas dogfighting and robbery clearly are always illegal. The question here is whether something entirely LEGAL can be made illegal ONLY in the context of certain acts of speech production. That’s a much different situation in my view than filming obviously criminal acts.

I’m afraid, though, that I still don’t follow your actor argument. You wrote, “The actress can’t then say: I can only express my sexuality by performing sex vaginally. By requiring me to perform an anal scene, you are violating my First Amendment right to expression.” I think you are obviously wrong in the first sentence, and trivially correct in the second. An actress can absolutely say, “I will only express my sexuality by performing sex vaginally,” and refuse to perform the anal sex scene. She’ll probably be fired. But that has nothing to do with the First Amendment. That’s just a creative difference. Creative differences happen all the time–I still don’t see what you think follows from that.

An actor who doesn’t want to play the part of murderer can refuse to play the part of a murderer. No director can FORCE an actor to do anything h/she doesn’t want to do. No actor ever has to play a part h/she doesn’t want to play. This is why actors get fired, and film projects break down. Happens all the time. Nothing to do with the First Amendment or workplace regulations.

The second sentence is trivially true because no private person can ever infringe your First Amendment rights (or only in very rare circumstances). If the director says, “you’ll do anal or you’re fired,” then that’s just a creative difference. Nothing to do with the First Amendment at all. Only when the government gets involved and wants to put the willing actor or the director in jail for willingly performing without condoms does the First Amendment get called into play…

Think of it this way. An actress is hired to act in a film that includes a scene with anal. She says, I don’t do anal. The director says: But, this is an anal scene. In fact, the movie is titled: Everything Anal. Anal in every scene. The actress can’t then say: I can only express my sexuality by performing sex vaginally. By requiring me to perform an anal scene, you are violating my First Amendment right to expression. Her job is to perform anal and make us think she loves it, hates it, whatever the director wants to get from her performance.

If the script calls for it, the actor’s art is to make us believe in the performance. So, the actor’s right to free expression isn’t inhibited. It’s the writer’s perogative to write condomless scenes and the director’s perogative to film condomless scenes that’s restricted — if speech trumps public health.

My other point wasn’t that porn by definition is obscene. Yes, that’s tough.

My point was that you used Scalia’s ruling about selling a video that depicts certain illegal acts as protected speech. But Scalia’s opinion, which was part of the majority, begins with the presumption that the speech that is being protected is not obscene. And, Scalia used prurient interest. You can’t take that example and then say: See, forcing porn to use condoms is illegal because porn is protected speech.

Here’s another reason using that example does not work. The ruling did not say that the underlying illegal act was protected speech. Only that the sale of materials that might depict violent or illegal acts falls under protected speech – assuming the material wasn’t obscene.

Nothing in that ruling says that the individuals who were responsible for the illegal acts that were filmed couldn’t be prosecuted or fined for committing those acts just because they were on film.

Here’s what I mean. Let’s say I decide to break into a jewelry store and steal all the jewels. Or, let’s say I decide to shoot my neighbors dog just because I don’t like dogs. Those are illegal acts. I can be prosecuted for either act.

Now, let’s say that while I’m committing those illegal acts, a documentary film-maker takes video of me in the act. The fact that the acts are on film doesn’t absolve me – the committer of bad acts – of responsibility. I can still be prosecuted. In fact, the film could be used against me.

The filmmaker could also be prosecuted if there’s evidence the filmmaker induced, coerced or collaborated with me to commit the illegal acts. Now, if a distributor comes into posession of the film, the distributor can still distribute it. The film is protected speech. But also remember, the bad actors are not allowed to profit from the sale of something that depicts them committing illegal acts. It’s the reason a mass murderer can’t sell the rights to a story about how they gruesomely killed people for a profit.

Now, use the porn example. If you are required to get a permit and wear a condom to film porn, and you do neither but film it any way, it is conceivable that I could post the the film on my website and make money – assuming I obtained it legally and have all the proper paperwork. However, that wouldn’t stop the authorities from fining, jailing or prosecuting the producers.

We actually have a perfect example of this in the Mr. Marcus situation. He committed what we now know was an illegal act – he had sex with at least two women while he had syphillis and knowingly exposed them to the disease. He was prosecuted and sentenced to a brief time in jail. The film of those acts was still posted on a commercial website for profit.

The act was illegal. Someone is paying the price for committing it. But, at least for a time, someone legally distributed and profited from the filming of it.

Actually, the question as to whether the actors are speakers here is a very interesting one. I think acting is undeniably an artform, even when done in porn– it’s a mode of expression that is just as protected as writing and music and painting. To be sure, in many situations it may well seem that porn actors are little more than workers doing a non-creative, non-expressive job; but that is actually a complex question.

Andy Warhol employed lots of very talented artists to help him produce his works–some of them were just hired grunts, others were very talented artists who clearly made real and creative contributions to the artwork, and were clearly engaged in a mode of speech. Simply to say, as a general matter, that actors in porn movies ARE or ARE NOT speaking when they perform in a movie probably can never be right. It might very well come down to a factual question in each case.

You are absolutely right that the profitability argument is not likely to win. Though as a matter of general principle, it’s not out of left field: if the government imposed regulatory costs ONLY on people trying to communicate Marxist or Christian perspectives, such that many of the book publishing enterprises associated with those points of view had to shut down, then there would obviously be a valid First Amendment claim. But yes, having said that, the First Amendment definitely does not guarantee profits.

The question of obscenity is not as cut and dry in my mind as it seems to be for you, BT. I think you are absolutely right that Scalia himself would find most hardcore porn–and hell, probably a lot of R-rated movies–obscene. But Scalia is more extreme on that issue than most of the other justices. Plus, there are plenty of lower court decisions finding this or that hardcore porn movie NOT obscene. Just because something is porn does not mean it’s obscene, and I think even Scalia would be loathe to suggest that, as a matter of general abstract principle, ALL porn is inherently obscene.

And of course, the question of obscenity is really beside the point in these condom cases. One thing that the government may certainly NOT do is just ASSUME that a given instance of speech is obscene and treat it as such. Obscenity is a conclusion of fact and law that requires a trial–if the government ever ASSUMES your speech is obscene without such a trial then it is not only infringing your First Amendment rights, it’s also infringing your Fifth Amendment rights.

I agree with Alex that this is a complex issue. I think two things to consider. The speech that’s being infringed upon is not that of the actors. Again, they are hired to play a part. If the part calls for a condom, then their job is to figure out how to play the role with a condom. If there’s speech being infringed upon, it would be that of the writer who has to write scenes involving condoms or the right of the director who interprets the script. If James Deen – and I don’t mean to pick on James – is not just the actor, but also the writer, director and producer, that’s a different story. But, if he’s just the actor, he plays the part.

Here’s what I think is interesting – while folks like James Deen and others talk about their freedom expression in articles, the argument the industry makes in its original filing, and the argument they reportedly made in the declarations – I’ve only seen the reports – is economic. Kayden Kross does not say that its in infringement of her right of expression to require her partners to wear condoms because her artistic vision is one of condomless porn and only condomless porn. Instead, she makes an economic argument: That her opportunities to express herself as an artist are limited because she can’t afford to rent a shooting location in a community that doesn’t require a condom.

Steve Hirsch argues that if he has to shoot with a condom, his sales will drop because porn with condoms sells 35% fewer units.

Logan Pierce says that he isn’t getting as much work as he used to get because of the condom law – which makes no sense since everyone seems to be ignoring it.

I don’t think the First Amendment guarantees profitability.

Here’s the problem with making the argument about Justice Scalia holding that the distribution of videos is protected speech – he said its protected because it isn’t obscene. On the other hand, obscenity is not protected speech in Scalia’s view. I don’t think the porn industry wants to show a film of Veronica Avluv with two penises in her butt and two more in her vagina as she’s squirting and count on Scalia saying that you can’t force those actors to wear condoms because the video is protected speech. He’s going to rule against you.

I guess I’m still not sure I see your point–yes, a producer can’t force an actor to do anything, and yes, an actor can’t force another actor to do anything. Just like a violinist can’t FORCE another violinist to play in a quartet with him, or play a certain way. Everyone has to consent. Not sure I see the point.

Regarding amputation–sure, there are laws that govern when such practices become properly surgical procedures and subject to laws. But that’s just the same as saying that it’s generally ILLEGAL for a person to cut another person’s arm off willy nilly, even if both people consent. Sure. But that analogy fails here, since it is obviously NOT illegal for any two adults at any time in private to engage in condom-less sex. Even if we all know that such behavior carries risks of STD infection.

To be sure, if someone knowingly exposes someone else to a disease, then there might be civil liability–and that might even be a criminal matter. But that would only apply in situations where you KNOW you have a disease and LIE about it. I don’t think anyone in porn wants to defend that kind of behavior.

So I think we need to be careful when trying to show the limits of the First Amendment by pointing to obviously illegal behavior. No one thinks the First Amendment gives people license to break existing criminal laws. No one is arguing that. Having condomless sex is not (or almost never) a crime. Cutting someone’s arm off for fun, even if the person is willing, probably is. There’s a huge difference between the two, especially for First Amendment purposes.

Incidentally, the Supreme Court very recently said that even if certain behavior IS illegal, selling films that recorded such behavior is very often protected by the First Amendment. I’m thinking of the animal cruelty case (I think Scalia wrote the opinion). There, the Court said that even if dog fighting can be proscribed, it would violate the First Amendment to punish people who sell VIDEOS of dog fighting.

I think the issues here are often more subtle and complex than you seem to think.

I hear what youre saying Alex, a director/producer cant force an actor to do anything. But I wasnt talking about producers forcing actors. I was talking about the legal consent necessary between the actors themselves, which the producer has NO control or say about.

Yes, it is complicated, but when the ACTORS themselves must consent to one another, it throws the producers first ammendment claim out the window.

And my amputation analogy is just that, an analogy, Where do you draw the line. At some point that “amputation” becomes a medical procedure, subject to laws regarding medical procedures, and the first ammendment does not trump those laws.

SLicing of the skin, piercings, or body modicfication is all legal, until it reaches a certain level. Is it ok for you to film me giving someone a tattoo, if I am not a licesnsed tattoo professional, but you want to make a movie about amatuere tattoo artists? The fist ammendment does not always autiomaticly win, and porn is a good case for it.

We all agree there is a line somewhere, its where that line is,,thats where the disagreements lie. You cant kill somone for a film because you call it articstic expression, thats a crime. Some would say exposing others t potentially infectious material “Intentionally” in a film is also a viollation of the law. An accidental exposure, say in a hospital is not a crime, but to do it on purpose, for a film, might be.

Second, I think you have both drawn analogies that don’t really work. You both seem to make much of the fact that the First Amendment does not allow a producer (or James Dean or whoever) to FORCE an actor to be in a scene without condoms. That fact is both true and irrelevant.

I think the mistake you both are making is that you forget that a private person cannot infringe your First Amendment rights. Only the GOVERNMENT can do that. So sure–no performer can be forced to perform without condoms. That has absolutely nothing to do any First Amendment argument. The only relevant question for the First Amendment is: Can a producer, or an actor, be PUNISHED by the government for doing a sex scene WITHOUT condoms?

Jilted’s example of cutting off fingers and hands is extreme–but it actually only proves my point. LOTS of people today are into body modification. They tattoo, they pierce, they carve themselves up–all in the name of expression. I think if the government tried to BAN such practices there would be a very valid First Amendment objection. Moreover, if someone wanted to make, say, a documentary about such practices, and filmed people willingly modifying their bodies, even removing their limbs, then I think the government would be hard pressed to censor such films without raising serious First Amendment concerns. At the very least, any court would have to seriously weigh the First Amendment interests of the speakers involved. It wouldn’t just be: Oh, fuck the right of expression, put these crazies in jail straightaway. There would be some very serious and hard fought litigation.

It is true that a director can’t force an actor to do anything he doesn’t want to do. It’s also true that a director can insist that if an actor doesn’t do what he wants, then he won’t work with that actor. It’s also true that a director can sometimes be flexible and still work with actors even though they won’t perform exactly the way he wants.

These propositions, when applied to various directors/producers in the adult industry, are not incompatible and produce no contradictions and do not destroy any First Amendment arguments, as far as I see it.