Condom County: No Argument for Measure B Justifies The Infringement on Performers’ Liberties

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from – On November 6th, while most of the world focused on the United States’ presidential election, the citizens of Los Angeles County confronted a slightly more explicit question at the voting booth: should porn performers be required to wear condoms while filming? Nearly fifty-six percent of LA county voters said yes.

Measure B, also known as the Safer Sex in the Adult Film Industry Act amongst proponents, requires porn producers to purchase health permits from the county so that random inspections can be carried out to ensure that performers are wearing condoms. The primary backer of the measure, the AIDS Healthcare Foundation, argues that the measure is important for protecting “both performer and public health” from the spread of HIV, particularly in protecting performers from “workplace hazards.”

Considering that Vivid Entertainment, one of the biggest porn studios, experienced a 30 percent drop in sales during a two-year period in which it filmed with condoms, the adult film industry is unsurprisingly Measure B’s greatest opponent. Citing the measure as a lamentable example of ‘big government,’ the industry campaigned on the platform ‘No on Government Waste.’

They claimed that the measure would be expensive to enforce and is unnecessary, since the industry already has in place effective STI testing procedures that prevent the spread of HIV. Their final argument, particularly salient in an era of high unemployment and slow economic growth, was that the porn industry would flee LA county in the event of the measure’s passage, taking with it 10,000 jobs and $1 billion in economic activity annually.

While Measure B raises a number of important questions, such as why opponents of the measure focused on government waste rather than choice and freedom of expression in their campaign against enforced condom usage and whether it was appropriate/constitutional/ethical to decide this issue by public referendum, I aim in this post to address the more fundamental question of whether it is morally permissible for the government to require porn performers to wear condoms on set.

Most people agree that the state must provide a strong reason for interfering in the choices of individuals when these choices do not result in harm to third parties. Therefore, it must be shown either that porn performers’ choices not to wear condoms actually do harm third parties or that this is a special case in which paternalistically mandating condom usage is morally acceptable.

In what follows, I lay out two arguments put forth by proponents of Measure B that the choice not to wear condoms harms third parties. Finding both of these unconvincing, I turn to proponents’ argument that interfering solely on paternalistic grounds for the well-being of performers themselves is morally acceptable. While this line of reasoning raises interesting arguments concerning the nature of choice in the workplace, I ultimately find it unsuccessful in providing a moral basis for government intervention in porn performers’ choice of whether or not to wear condoms.

Harm to Third Parties Argument 1: Porn performers, who must be at a higher risk for HIV due to frequency of sex, number of sexual partners, and failure to wear condoms, are likely to transmit HIV to members of the general population, fueling a public health crisis.

This argument seems to rest on the empirical claim that porn performers are more likely than the average citizen to contract and pass HIV on to others and are thus a greater “cause” of the HIV public health crisis. Otherwise, this type of public health argument would suggest that we enforce condom use upon all citizens. Setting aside questions about whether harm to “public health” can reasonably be considered a third party harm, this argument appears to fall apart in light of the empirical data.

Before any filming commences on a porn set, an industry database is used to confirm that all performers have tested negative for HIV, syphilis, chlamydia, and gonorrhea in the past 14-28 days. Such frequent testing appears to work surprisingly well: there have been no cases of HIV transmission on a porn set in the past eight years.

Indeed, according to the California Department of Public Health, while there were 6,447 new cases of HIV reported between 2008 and 2011, only two were porn performers and both contracted the disease off-set. Furthermore, the industry has detailed plans in place in the event of a positive test result: studios across the country are notified and required to cease filming, sometimes for months at a time, until potentially infected actors are tested.

Based on the data, HIV prevention actually appears more effective and even laudable in the population of porn performers when compared to the general public. Thus the claim that they present a greater threat of harm to “public health” than other citizens does not stand up, and this argument cannot justify state interference.

Harm to Third Parties Argument 2: Teenagers watch porn performers engaging in sex without condoms and conclude that “hot sex is sex without a condom.” Due to this “bad influence,” they do not use condoms and are at a higher risk for contracting HIV and other STIs.

Teenagers’ sexual choices may indeed be unduly influenced by porn performers, perhaps due to the psychological effects of modeling suggested by social learning theory and/or incomplete brain development. But the argument that we should therefore infringe upon the liberty of the performers seems to get things the wrong way around. Assuming a general respect for individual liberty when choice is based upon rational, autonomous, and critical thought, it seems confused to interfere with the decision-making process of consenting, adult performers when what is really “causing” the identified harm is the underdeveloped decision-making capacities of teenage viewers.

On this view, state intervention should focus on the choices of teenagers, not those of porn performers, since it is when choice is not truly autonomous (be it an extreme case of coercion or the far more mild case of undue influence illustrated here) that we think it morally permissible to intervene in individual choice. Based on this conclusion, it would be morally acceptable for the state both to construct more robust measures to prevent minors from accessing porn and to attempt to “check” the psychological influences of modeling with comprehensive sexual health education and carefully crafted public health messages.

Yet it is not morally permissible for the state to attempt to take a “short cut” by restricting performers’ choices. Although it would be easier for the state to achieve many desirable ends, such as crime reduction, if we didn’t have such strong protections on liberties, such as those to prevent unreasonable search and seizure, we think, rightly, that protecting these liberties is worth some additional cost and inconvenience to the state in reaching that end.

The case of performers choosing whether to wear condoms is no different; even if it would be easier to increase condom use amongst teenagers by banning performers from filming without condoms, the presumption in favour of liberty suggests that the state must accept the somewhat more onerous means to achieving its ends.

Paternalistic Argument: Porn performers aren’t freely choosing to have condom-less sex; they are forced to do so or lose their jobs. Thus, we ought to regulate their workplace in order to protect the health and safety of the performers. We make construction workers wear hardhats for their own protection – how is this any different?

This argument seems to be two-fold. I’ll start by addressing the first claim, that porn performers are, in a morally significant sense, “forced” to have unprotected sex, since they may be fired if they refuse. We generally find it morally permissible and even desirable for the state to intervene if an individual is being forced to do something that endangers her health or well-being.

It seems to be an accurate formulation that a person is forced to do something when she has no reasonable or acceptable alternatives. But the notion that porn performers in Los Angeles County have no reasonable or acceptable alternatives seems patently false. Even if there were no producers willing to film with condoms, of which there are an albeit limited number, there are a range of unskilled jobs (assuming the worst case scenario in which a porn performer has literally no other talents or education) in Los Angeles that provide reasonable and acceptable alternatives if performers were unwilling to take the risk of condom-less sex.

Thus the construction of an image in which a pitiful porn performer “just can’t say no” in order to justify state intervention on their behalf is misguided and, in my opinion, posits a dangerously broad understanding of when an individual is “forced” to do something.

The second half of this argument, perhaps the most frequently voiced in the weeks leading up to election day, suggests that we ought to treat the porn set just like any other workplace, which would include putting in place occupational health and safety regulations. Indeed, Michael Weinstein, the president of the AIDS Healthcare Foundation has compared the measure’s spot inspections to ensure condom use to hot dog stand health inspections.

Other proponents of Measure B assert that it simply extends state regulations requiring protective equipment for occupational exposure to blood and other potentially infections materials, originally crafted for doctors, lab technicians, and dentists, to the adult film industry.

Yes, the porn set is a workplace. But we don’t, in fact, treat all workplaces the same. We allow vastly different levels of risk in the workplace based largely on the understanding that a competent adult should be able to assume a greater risk of harm in his career if he is fully aware of that risk. Racecar drivers and football players certainly accept a much greater risk of harm in their respective workplaces than schoolteachers and accountants, and arguably more than porn performers. Yet most people would laugh if OSHA attempted to put a 100 mph speed limit on NASCAR races or demanded that the NFL only play ‘touch’ football.

Furthermore, it seems absurd to place porn performers under the same regulations as lab technicians and other healthcare professionals for exposure to potentially infections materials. It seems important that the cost to a technician of wearing protective gear is not only minimal in terms of time and inconvenience but also does not seriously alter her action’s ultimate intent: to test blood. Testing blood with gloves is not all that different from testing blood without gloves.

However, I think a person can reasonably argue that performing sex with a condom is significantly different from performing sex without a condom.

Indeed, this is exactly what performers have argued in response to Measure B: the performer James Deen argues that filming without a condom allows him to portray a certain type of fantasy that Measure B’s condom requirement will prohibit, while female performers like Nina Hartley argue that the nature of porn sex – far longer and with many more stops and starts than sex for the average person – makes the use of condoms painful and even dangerous if it results in vaginal tearing.

Ultimately, then, there seems to be a difference in kind rather than degree between requiring protective gear for healthcare professionals and requiring condoms for porn performers. The former serves as a safety precaution, while the later serves as a prohibition.

Having addressed the strongest arguments for Measure B, I find that none of them justify the infringement on performers’ liberties that is entailed by government-enforced condom use. Stay tuned to see how these arguments play out in court, as the industry’s trade group, the Free Speech Coalition, has promised to challenge the measure as “unconstitutional on the grounds of forced expression.”

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