Poking Holes in L.A.’s New Condom Requirement: Pornography, Barebacking, and Speech

Washington University Law Review Volume 90 Issue 6 2013 Poking Holes in L.A.’s New Condom Requirement: Pornography, Barebacking, and Speech Alexander S. Birkhold DLA Piper LLP Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Law Commons Recommended Citation Alexander S. Birkhold, Poking Holes in L.A.’s New Condom Requirement: Pornography, Barebacking, and Speech, 90 WASH. U. L. REV. 1819 (2013). Available at: https://openscholarship.wustl.edu/law_lawreview/vol90/iss6/7 This Commentary is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact . POKING HOLES IN L.A.’S NEW CONDOM REQUIREMENT: PORNOGRAPHY, BAREBACKING, AND SPEECH ALEXANDER S. BIRKHOLD In November 2012, California voters approved the County of Los Angeles Safer Sex in the Adult Film Industry Act, known as ―Measure B‖. The law requires producers of erotic adult films to overcome financial hurdles and complete educational training to secure filming permits and also mandates the use of condoms during the production of adult films. If a movie‘s producers shoot a scene involving anal or vaginal intercourse without a condom, they will lose their Measure B permits, face fines, and be forbidden from engaging in any future filming for an unspecified period. Although the purpose of the law is laudable—to minimize the spread of sexually transmitted infections resulting from the production of adult films in the County of Los Angeles—the regulation functions as an outright ban on the filming of unprotected, or bareback, sex scenes and is an impermissible infringement on protected speech. Since Measure B‘s strict requirements do not leave open alternative channels of communication, the law will fail constitutional scrutiny under a content-neutral standard. This conclusion, however, may be difficult to reach if the value of barebacking as speech and the alternative means of expression are only evaluated through a traditional heteronormative lens. Queer theory offers a distinctive platform from which to challenge the law, and a careful analysis of bareback sex within the gay community brings the importance of this speech into sharper relief. Barebacking constitutes a unique identity within the gay community, namely hypermasculinity. Forcing a gay porn star to cover his penis during filming is tantamount to sheathing his sword, blunting his masculinity, power, and speech.  Alexander S. Birkhold is an Associate at DLA Piper LLP (US). J.D. (2011), New York University School of Law; B.A. (2008), Tufts University. Thank you to Professor Amy Adler for sparking an interest in the subject and to Matthew Birkhold for the thoughtful feedback. The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, DLA Piper LLP (US). 1819 Washington University Open Scholarship 1820 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 90:1819 BAREBACK SEX IS UNIQUE SPEECH It is well settled that the First Amendment protects erotic films.1 Although the government may impose limited time, manner, and place restrictions on speech, it may only regulate the speech as ―obscenity‖ if it lacks serious literary, artistic, political, or scientific value.2 First Amendment scholars and courts often evaluate sexual speech through a heteronormative lens. This myopic approach, however, threatens a valuable marginal viewpoint. Engaging in and depicting bareback sex is important political and artistic expression, particularly within the gay community. Bareback sex emblematizes sexual freedom and an ―outlook on sexual life that, in important ways, has long shaped and animated gay male sexuality as thought and practice.‖3 In short, barebacking is a sexual identity that communicates uniquely significant sexual, personal, and political ideas.4 Gay men have organized a sexual identity and subculture around the practice of barebacking. The suggestion that barebacking is a subculture distances it not only from heteronormative society but also from gay society.5 ―As a subculture, barebacking can be represented as both a minority and marginalized sexual form, an underdog among underdogs . . . .‖6 Within the gay community, bareback sex represents masculinity, and words such as ―pig play‖, ―dirty‖, and ―nasty‖ play an important role in the construction of identity.7 The hypermasculinity of barebacking ―celebrates slutdom and promiscuity‖8 and this ―piggery‖ represents a unique ―construction of male-male sexuality.‖9 Since one function of pornography is ―to reflect the experience and the character of 1. See, e.g., Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981); City of Renton v. Playtime Theaters, 475 U.S. 41 (1986). 2. Miller v. California, 413 U.S. 15 (1973). 3. Marc Spindelman, Sexual Freedom’s Shadows, 23 YALE J.L. & FEMINISM 179, 183 (2011) (review essay) (citing TIM DEAN, UNLIMITED INTIMACY: REFLECTIONS ON THE SUBCULTURE OF BAREBACKING (2009)). 4. See Chris Ashford, Barebacking and the ‘Cult of Violence’: Queering the Criminal Law, 74 J. CRIM. L. 339 (2010); see generally J.T. Parsons & D. S. Bimbi, Intentional Unprotected Anal Intercourse among Sex Who Have Sex with Men: Barebacking—from Behavior to Identity (2007) 11 AIDS & BEHAVIOR 2, 277 (2007). 5. Spindelman, supra note 3. 6. Id. 7. See Ashford, supra note 4 (citing Paul Morris, the founder of Treasure Island Media, who described his approach to sex as ―cum-guzzling, double-dick, real mansex.‖ http://www.treasureisland media.com/TreasureIslandMedia_2007/paulsPapers.php?article=StatementOfPurpose). 8. Id. 9. Spindelman, supra note 3. https://openscholarship.wustl.edu/law_lawreview/vol90/iss6/7 2013] PROTECTING BAREBACK SPEECH 1821 the people who watch it,‖10 eliminating the production (and viewership) of bareback pornography jeopardizes a subset of gay speech and identity that deserves as much protection as other speech. The First Amendment should prevent Measure B from unduly infringing on this minority voice. Although scholarship, the adult entertainment industry, and broader society continue to debate the precise meaning of bareback sex, the discourse suggests that the act and its depiction are meaningful and not purely obscene. Several scholars propose that bareback sex represents an erotic risk among gay men that has become organized and deliberate.11 Others posit that engaging in unprotected sex represents the ―bad queer‖ and the proliferation of bareback pornography ―is the public revelation of the ‗dirty secret‘ of sex lives, and the growing visibility of the ‗bad queer.‘‖12 For certain gay men, engaging in unprotected sex is even a category of ―political action.‖13 Speech is inextricably tied to self-realization, personal liberty, and (...truncated)