The porn industry in Los Angeles has failed to link sex without a condom to free speech, with a federal appeals court decision obliging actors to continue using them.

The court ruled on Monday that an LA county ordinance mandating condoms in films did not violate the adult entertainment industry’s first amendment rights.

The three-judge panel of the ninth US circuit court of appeals said the claim that condoms sabotaged porn’s fantasy element was a stretch [PDF].

Vivid Entertainment, Califa Productions and other producers had argued that the 2012 ordinance, which was passed by voters, restricted their ability to create alluring scenarios free of real-word concerns like pregnancy and sexually transmitted diseases.

The court upheld a district court’s ruling that audiences were likely oblivious to such a message.

“Here, we agree with the district court that whatever unique message plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message,” said Judge Susan Graber, writing for the panel’s majority.

Sex, rather than condomless sex, was the relevant expression for first amendment purposes, the court found.

The LA-based AIDS Healthcare Foundation, a powerful advocacy group which championed the condom ordinance, known as measure B, hailed the ruling as a vindication. “The court struck down every one of their arguments,” said Michael Weinstein, the group’s president.

The group has compared performing without condoms to Russian roulette and is aiming for a California-wide law.

Diana Duke, head of the Free Speech Coalition, an industry group, said in a statement that the condom mandate was “terrible” policy.

“We have spent the last two years fighting for the rights of adult performers to make their own decisions about their bodies and against the stigma against adult film performers embodied in the statute. Rather than protect adult performers, a condom mandate pushes a legal industry underground where workers are less safe.”

The group has called mandatory condoms unnecessary because of regular health screenings. It has blamed sporadic HIV outbreaks on performers’ private off-camera behaviour.

It said performers disliked condoms because aggravated friction amid bright lights and prolonged periods of penetration caused discomfort and impeded erections.



Audiences appear to dislike them too, prompting a reported production flight from the San Fernando valley, a venerable porn hub, to Las Vegas and other areas outside LA county.

The number of permits issued for adult films in LA county had fallen 95% since measure B passed, said Duke. However, as a film can be shot in a few days in a private house without a permit, it is unclear how much production has fled.