by Sherry F. Colb
In my Verdict column this week, I discuss the defeated California initiative, Proposition 60, which would--among other things--have required that actors in pornography wear condoms during their performances. I take up the question whether this measure would, if passed, have violated the First Amendment right to the freedom of speech. The argument that it would is that it singles out speech (i.e., pornography) for requiring people to use condoms and does not require other people, even those in high-risk groups, to use them. The response is that when money changes hands, there is more reason to worry about coercion and therefore a greater interest in actually requiring that condoms be used. Because porn is the only lawful business in which money is exchanged for sex (since prostitution is illegal in California), the measure arguably targets sex work rather than speech.
In this post, I want to discuss a counterfactual scenario. In fact, the initiative specified that the condoms being used would not have to be visible to the audience. This made it clear that the goal of the measure was truly to have each actor wearing condoms for his own sake and for the health of the other actors rather than as a means of conveying the message to the public viewing the film that condoms ought to be used during sexual activity. Had the measure instead required that the condoms be visible on camera, that would have made the initiative harder to defend against a First Amendment challenge. It would have made it seem like the government was specifically targeting the message of porn and requiring that the message be pro-condom rather than anti-condom.
Let us consider, for a moment, a different regime of free speech protection, one in which the government may require actors in porn to wear condoms and to do so not only for the sake of the actors but for the sake of the viewers as well. Imagine, in other words, that legislation addressed to speech harms (i.e., harms directly tied to the content of the speech) does not necessarily violate the freedom of speech. This would mean, in our case, that the government could regulate the content of a work of art (a pornographic film, in this case) as a means of sending a message to the public to wear condoms. This might be said to interfere with the integrity of the work of art, but the government interest here is a strong one-- to encourage the public to use condoms and thereby to avoid the spread of sexually transmitted infections, including HIV. Is the balance necessarily correctly struck by saying that the government simply cannot do that, as our current doctrine holds, and that it must limit itself--if it is to require condom use--to targeting the health of the employees of the porn industry rather than the health of the public more generally, through the messaging implicit in a film where actors either do or do not use condoms?
If one watches television or goes to the movies, one can easily get the impression that the best kind of sex is spontaneous, unexpected, and condom free. Though television and film does not typically show enough of the sex act for the viewer to actually see the absence of a condom, the circumstances in which people suddenly decide to have sex (e.g., doctors in one of the on-call rooms in a hospital) do not easily lend themselves to advanced planning that would include the use of a condom. Far more romantic, the message seems to be, to have sex when and where the couple suddenly gets the urge to do so, and the consequences (in the likely event that there is no condom handy) be damned. This is arguably destructive and provides subconscious messages to the audience that discourage condom use (or, at the very least, encourage the sort of sexual liaisons that are unlikely to include a condom).
Would a government requirement that condom use be part of the plot interfere with the artistic integrity of the show? Yes, to some extent, it would, particularly if the government were to try to script the introduction of condom use. Nonetheless, it might not be such a bad thing, and it might not disrupt the integrity of the program so much that it would not be worth it to spread the message that condom use is both a good idea and consistent with fulfilling and joyous sexual experiences.
The same, of course, could be said for the use of cigarettes in television and film. Would I be in favor of a law that required actors to refrain from smoking during a program, with the express aim of avoiding the message that smoking is cool or desirable? I am not sure of this. Perhaps my reaction is to the difference between higher-value film and television (i.e., non-porn) and porn, and I am more comfortable with the idea of regulating the latter than the former. Or perhaps in a non-sex plot, the use of cigarettes has an artistic purpose--in Mad Men, for example, it is meant to convey the behavior of the era, when everyone seemed to be smoking. To require the actors in that show to refrain from smoking would seem to substantially alter the plot in a manner that would undermine the purpose of the show, which is to accurately reflect the era that it depicts.
It is difficult, of course, to distinguish between when the government's insertion of its own message into a film or television program interferes with the whole idea of the program and when it does not. I suppose my sense that perhaps porn should not be protected speech at all (or at least be less protected than other speech) drives my reactions to the various scenarios. Ultimately, though, I would support a speech-targeting requirement that actors in porn wear condoms. Such a requirement, to my mind, would not interfere much with the "plots" of pornographic films, and it would serve the compelling government interest in stopping the spread of sexually transmitted infections, not only among porn actors but in the public at large. I would not, however, extend this permissive approach to the non-porn realm (e.g., in regulating smoking on set for the sake of the audience).
Finally, I recognize that my views as stated here are not consistent with current doctrine. They might find support in something like the approach advocated by my colleague Steve Shiffrin in What's Wrong With the First Amendment.