Sure, Baddog...I'll take a stab at explaining how this referendum is a Freedom of Speech issue. It is complicated, so where to start.....? First, I am not an attorney. This is just my personal opinion.
For example, I am a producer in Los Angeles. For years, the since the case of People v. Freeman producing a porno was diferentiated from prostitution, deciding that someone whose role is merely potraying a sexual relationship on-screen as part of their acting performance is protected from prosecution and the producer is not guilty of pandering. Since that time, I have been able to produce movies that fall within LA's liberal community standards as determined by the Miller three-part test. I want to send the message that sex between consenting adults is pleasurable, natural, fun and the ultimate intimate experience two people can share.
Now, many years later, along comes an organization who want to send a message to the world that protected sex is the only safe sex. They feel that the adult movie industry is the best vehicle for disseminating their message. Accordingly, they work with LA City and County officials to get the required legislation requiring protection in all locally produced adult movies on the ballot for a referendum that will result in the legal requirement that all local adult movies will be required to comply with their protected sex standards of mandatory condoms, googles, dental dams, etc. (More on this later.)
I do not agree with the message that they are trying to send to the public. With the passage of the referendum, the requirement for protected sex with goggles, dental dams, rubber gloves and condoms make it impossible for me to produce my movies conveying my message without risk of fines or jail. The result is that my message has been silenced in the community.
Moreover, if I continue to produce movies that conform to the new regulations out of financial necessity, I am compelled to send this organization's message against my will. This is also a violation of my Free Speech rights.
Now, back to the regulations that are instituted as a result of this referendum passing. Because the regulations impact my free speech rights, they are required to pass what is known as "strict scrutiny" which will insure that the regulations have as little impact on my constitutionally protected rights as possible and still achieve their goal of protecting performer health.
According to Wikipedia:
Quote:
To pass strict scrutiny, the law or policy must satisfy three tests:
It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately.
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I'd argue that the condom referendum fails the strict scrutiny test's third requirement:
1. There is a compelling government interest: protection of performer health. (Pass)
2. The policy is narrowly tailored to achieve the goal in that it only requires protection on adult sets where the performers work.(Pass)
3. The policy must be the least restrictive means of achieving that interest. (FAIL). The truth is that condoms fail, condoms fall off and performers can be infected by sores on non-protected areas of other actors. I am sure that there are additional ways that the protection required can fail that I have not mentioned. One the whole, I'd imagine that the failure rate of protection is on par with the best testing regime. The mandatory protection part of the condom referendum is the part that restricts my freedom of speech and is not the least restrictive means to achieve the same end, performer protection.
A less restrictive alternative would be mandatory testing with the information recorded in a secure database by medical authorities for use by the adult industry. Testing should cover all STDs including syphilis which, before, was considered so rare an occurance as not to be a significant threat. The testing should be done bi-weekly (some say is best and is currently done by some performers) or as often as determined by the medical authorities in order to maintain a non-infectous state among the performer pool.
There should also be some agreed to restrictions placed on outside sexual activities of adult performers such as prositution, escorting, and the like by the talent agents. I could see outside sexual activities being curtailed during the time period that the performer is actively performing with other performers. Many performers come to LA for a month or so during which they work; then, they return home. When no longer actively performing, the performers could persue their other interests. Hopefully, they would agree to limit their sexual activities to their "significant other" while actively performing.
This less restrictive alternative would allow me as a producer to be sure that my performers were disease free; the heath of the performers would be protected; and I could continue to produce the movies that contain my message that sex between consenting adults is pleasurable, natural, fun and a ultimate intimate experience two people can share. Furthermore, I would not be coerced into sending that other organization's message against my will.
These are just my ramblings and nothing formally considered or proposed.
