PORN VALLEY—On Monday, Los Angeles Mayor Antonio Villaraigosa signed into law the bill passed last week by the LA City Council, based on AIDS Healthcare Foundation's (AHF) ballot initiative that would require that all filming permits issued in the City of Los Angeles by permitting agency FilmLA to adult producers to include a requirement that the male performers wear condoms during the filming of sex scenes. Such companies will be charged a fee, the amount yet to be determined, to fund the inspections necessary to make sure the law is complied with.
And in 90 days—though it could be in as little as half that—when the measure takes effect, all they'll have to do is figure out how to enforce it.
Of course, virtually all adult companies oppose the measure, noting that the procedures in place to test performers for sexually transmitted diseases (STDs) including HIV have shown that, despite flawed statistics released by the Los Angeles Department of Public Health, the infection rates in adult are roughly the same as in any other identifiable sexually-active segment of the Los Angeles population, and that, again despite flawed statistics from LADPH, there has not been one single HIV transmission on a heterosexual porn set in California since 2004.
The topic of the new mandatory condom law was the focus of much discussion at the recent Adult Entertainment Expo (AEE) in Las Vegas, with several attorneys with industry clients weighing in on both the efficacy of the law as well as its likely unconstitutionality.
"It should be obvious even to [AHF president] Michael Weinstein that there's a vast difference between the erotic message sent by a movie where the participants engage in apparently spontaneous sex without condoms in a variety of settings, and one in which they stop to put on condoms, or the condoms suddenly magically appear on the guys' penises and the lovemaking proceeds from there," said one attorney who asked not to be named. "I doubt that if this law were challenged in court, it would survive."
But it remains unclear what actions, if any, the industry and/or its trade association, the Free Speech Coalition, will take from here.
"The city ordinance is more of a nuisance at this stage than anything," opined FSC executive director Diane Duke, "but what is significant about it is that it's the first step in government intruding into how we make film, and even into the sexual behavior that takes place between consenting adults."
Though one or more lawsuits remain a possibility, some production companies have stated that they would consider moving their headquarters out of Los Angeles entirely, or even out of the state. Few states have affirmatively banned the production of sexually explicit movies, though such restrictions have yet to be challenged in court, and three jurisdictions—California, New Hampshire and New York City—have judicial decisions allowing the conduct.
Even the pro-mandatory-condom Los Angeles Times noted that there are 87 cities in Los Angeles County other than Los Angeles itself, as well as numerous unincorporated areas, only a short driving distance from the City of LA, to which the companies could relocate and begin filming—and noted in any case that the new permitting law doesn't apply to "filming that occurs on certified sound stages," of which the adult industry already has several. (Of course, AHF has mounted a second petition drive to place a mandatory condom measure on the LA County ballot.)
Importantly, none of the companies have said they would begin to make all-condom productions, because they know from experience that such movies do not sell enough to make back their costs, leaving them in the unenviable position of refusing to comply with the law or seeing their businesses bankrupted through lack of sales, as happened with Video Team after it and several other companies tried going "all condom" after the 2004 HIV infections. And though it is occasionally suggested that adult companies could fix the "condom problem" "in post," in fact, it would cost hundreds of times more to digitally erase condoms from movies than it cost to make the movies themselves.
"The government can't compel us to make a product that the market doesn't want," stated Video Team's former owner Christian Mann.
Just as important as the fact of the new law will be its implementation. According to the Times, "The city council has asked the Los Angeles Police Department, city attorney’s office and the state's workplace safety agency to figure out how to enforce the rule," and a press release by AIDS Healthcare stated, perhaps unofficially, that the "Working Group" will include the city's Personnel Department, the City Attorney, the Police Department, the California Division of Occupational Safety and Health, the California Occupational Safety and Health Standards Board, "and other relevant stakeholders." It's interesting that as far as AVN has been able to ascertain, no adult industry companies nor their trade association, FSC, are currently considered "relevant stakeholders."
It will also be interesting to see, as this "Working Group" begins its work, which individual or agency winds up with the contract to conduct onsite inspections of covered shooting sites to see if the condom law is being complied with. There have long been suspicions that AHF itself wants the contract, and that the revenue that would be generated thereby was the actual impetus for their petition drive in the first place, so it will be interesting if AHF or one of its front groups winds up as the "condom police."
"This is the first step in AHF's war against our industry, using government regulation as its primary weapon," Duke stated. "We as an industry are considering all options in combating this outrageous and overbearing intrusion into our industry."
An article on LAist.com noted that there was just one city councilman who voted against the mandatory condom measure: Mitchell Englander, who represents the northwest portion of the San Fernando Valley, including Chatsworth, where the majority of adult video production companies are located. Obviously, even though he's a Republican, he knows something about adult businesses' needs... and their contributions to the fiscal and spiritual health of all Californians.
Note: This article has been updated from its original version.