The First Amendment and Mandatory Condom Laws: Rethinking the 'Porn Exception' in Strict Scrutiny, Content Neutrality and Secondary Effects Analysis

Abstract

Public health advocates in California have campaigned for new laws for the last fifteen years requiring the use of condoms in the production of pornography to reduce the spread of HIV and other sexually transmitted infections. This article examines the efficacy and constitutionality of mandatory condom laws and critiques Vivid Entertainment, LLC v. Fielding, the Ninth Circuit Court of Appeals decision striking down parts of Los Angeles’ regulatory scheme but upholding the mandatory condom requirement. After exploring jurisprudence related to pornography production — including the conduct/expression dichotomy in First Amendment law, the strict and intermediate scrutiny standards of First Amendment analysis, the contorted secondary effects doctrine, the perplexing nature of the pornography/prostitution distinction by the California Supreme Court decision People v. Freeman, and the expressive elements unique to the subgenre of “bareback” pornography — the Article argues for the reassessment of the “pornography exception” to strict scrutiny analysis for content-based regulations.

Keywords: First Amendment, pornography, secondary effects, strict scrutiny, public health