For clients and counsel alike, even the most solidly advanced legal argument suddenly can find itself fighting its way upstream due to unforeseen circumstances occurring outside court. Take the case of the adult film industry and its recent appeal of a U.S. District Court’s upholding of a Los Angeles County requirement that male porn performers wear condoms during XXX-rated filming. Who knew that, even as Los Angeles-based Vivid Entertainment sought to overturn that finding, the whole naughty-movie industry would be grappling with not one, not two, but three and possibly four highly publicized instances in which actors or actresses have tested positive for AIDS-causing HIV infections? This, in turn, has prompted the industry itself to declare a weekend filming moratorium, the second in roughly a month.
The timing of the actors’ HIV-positive diagnoses couldn’t be more challenging, in legal terms, for those who are battling advocates of the county condom law, which proponents term a prophylactic measure necessary for public health and safety reasons. Porn proponents, of course, disagree, arguing that requiring condoms on specified sets and under targeted circumstances harms business. They say it is unnecessary because XXX performers undergo regular testing. And they say they’re battling the law because it is a rare and unconstitutional intrusion into movie-making, as it violates performer’s First Amendment rights to express themselves.
To proponents of Measure B, dubbed the “Los Angeles County Safer Sex in the Adult Film Industry Act,” the multiple performers’ recent HIV-positive test results further hammers home why U.S. District Judge Dean Pregerson recently upheld the condom regulation, though his order also included procedural blocks to enforcement of it. Indeed, many have doubts as to whether LA city, the county of Los Angeles or even the state — if a measure on hold in the California Senate were to pass — will have the resources to enforce condom requirements on set, even without the limitations.