Among other things, Weinstein says that porn sends out a message that only unsafe sex is hot, and that’s detrimental. That is a losing issue for the pro-condom side. There is a first amendment right for individuals to send out any message they want to send out. There are limitations on commercial speach, but the news media, art, books, music,drama and films are extended the rights of individuals. Government cannot shape the message by limiting speach. In fact, the Supreme Court upheld the rights of a parade in South Boston to limit participation by gay groups because it did not want to promote a gay message in its parade. The court ruled that a parade is a form of speech. If porn producers want to say that unprotected sex is hot, it’s their right to say that.

Among other things, Duke compares filming porn to boxing, where the object is to knock out the other guy, an inherently dangerous act. The problem is this: boxers wear all kinds of protection in training and are required to wear protection in the ring. They wear cups to protect against low blows. They wear mouth guards. They wear heavily padded gloves – the size of the gloves is regulated. Attending physicians and corner men wear latex gloves. If anything, boxing would argue in favor of condoms: necessary steps are taken to insure that a dangerous sport is practiced as safely as possible. If you use that same logic, porn can still film ATM, anal, squirting etc as long as its done safely. A condom does not prevent a penis from entering any orifice.

Kayden Kross and many porn performers liken the mandate to a limitation on their personal freedom. But that too misses the point – the government isn’t telling them what they can or can’t do in the privacy of their own home. Only what they must do in the work place.

So, it’s going to come down to workplace safety and public health. The USC film professor has it right when he says that safety transcends content and he doesn’t know what the solution is. For example, a movie maker like Sam Peckinpah could turn raw violence into a ballet, but he couldn’t do so by actually shooting and stabbing people. He had to get out his message in a safe way.

Whether you agree with the ruling or disagree with the ruling, it’s going to come down to whether the government has a right to put in place rules to create a safe workplace and protect the public health. Porn is trying to win the battle by focusing almost exclusively on HIV in its arguments and treating syphllis, herpes, gohnhorrea, chlymidia, hepatitis and whatever else you might contract by sharing bodily fluids, tonguing rectums, etc. as treatable nuisances. I think that’s a losing argument.