Pornography, Paternalism, and Prophylactics

by Dr. Gerard Emershaw

In late 2012 Los Angeles County passed a law requiring that male performers in adult films use condoms. As a result, the number of permits issued there for X-rated films in 2013 dropped 90% to just 40 in 2013. Through the beginning of August, there were only 20 issued for 2014. Predictably, this progressive paternalistic prophylactic proviso pillaged the porn profession.

The natural right to free speech assures that consenting adults have the right to produce and star in adult films. The question is whether local or state governments ought to be able to pass laws protecting these adults from themselves. A 2010 study of 168 Los Angeles adult industry actors found that 28% tested positive for either gonorrhea or chlamydia or both. In August of 2012, a syphilis outbreak caused a ten-day moratorium on producing adult films in Los Angeles. An unidentified adult performer in Los Angeles has recently purportedly tested positive for HIV. Three performers contracted HIV in 2013.  From 2004–2012, eight actors contracted HIV. In contrast, in Nevada brothels, where condoms have been required since 1988, there have been no cases of HIV and a negligible number of cases of any STDs.

But alas, adult films featuring condoms are not popular with American audiences. Despite various HIV testing programs that the adult film industry has instituted, there is clearly an elevated risk for contracting HIV and other STDs. So, should the government protect adult film performers by mandating the use of condoms even though neither audiences nor performers are happy with the idea?

The federal government does not have the power under the Constitution to micromanage the porn industry, but if Congress had the desire, it would cynically appeal to the Commerce Clause. However, it has yet to act on this, likely not wanting to get involved with pornography. While state and local governments have broad “police powers” under the Tenth Amendment and have the power to regulate things such as adult films made within their jurisdiction, paternalistic laws requiring that adult film performers use condoms are inappropriate in that they violate the freedom to contract. Article I, Section 10, Clause 1 prohibits states from passing any “Law impairing the Obligation of Contracts.” Assuming that adult film performers and the producers who make the films are consenting adults, then it is their duty and responsibility to negotiate the terms of their contracts. While acting in adult films without using condoms does increase the risk of contracting HIV or other STDs significantly, these risks are known. No actor is forced to perform in these films. Acting in adult films is not the only dangerous occupation. Professional football and professional boxing both have high risks of injury as do many other sports. According to the Bureau of Labor Statistics, the ten deadliest American jobs are logging workers, fishermen, aircraft pilots and flight engineers, roofers, structural iron and steel workers, refuse and recyclable material collectors, electrical power line installers and repairers, drivers, farmers, and construction workers. Adult film workers are not on that list.

One might argue that each of these ten professions employ many safety regulations and that one simple precaution—namely employing condoms—would remove most of the health risk for adult film performers. However, a rejoinder is that since consumers do not enjoy adult films where condoms are employed, the adult performers really cannot do their jobs at all with condoms. If the government could make the fishing industry perfectly safe but this resulted in the fish being tainted, then this would not be a solution. Similarly, if the government could make logging completely safe, but this produced lumber that was unusable, then this would not be a solution. If all American adult films involving men needed to employ condoms, then the American adult film industry simply would not be able to compete with production companies in foreign countries which did not require condoms. This kind of regulation would be the industry’s death warrant.

Make no mistake, the Los Angeles condom law was not designed to protect adult film stars. It was designed to destroy the Los Angeles adult film industry. Those in the unholy alliance of Puritanical socially conservative blowhards and radical feminists who designed the law knew full well that it would chase the industry out of the county. If such laws became the norm, then it would chase the industry out of the country.

The natural right to liberty gives adult human beings the right to choose their own actions and the responsibility to protect themselves in performing these actions. Adult film performers have the right to assume the risk. While they do not have the right to knowingly have unprotected sex while infected with HIV or another STD without informing others involved, they do have the right to perform sex acts in adult films without using prophylactics. Perhaps government at all levels ought to worry more about the nearly 2 million Americans who have been killed or injured in wars over the past century. These largely unnecessary deaths and injuries are the true scandal that needs to be addressed.