Contrary to popular belief, pornography has not won the culture war. Far from enjoying the spoils of victory, pornography instead faces legislative ire up to the point of absolute prohibition. On November 6, 2012, close to fifty-six percent of voters approved the County of Los Angeles Safer Sex in the Adult Film Industry Act (“Measure B”), completely prohibiting “bareback”—or condom-free—pornography production. An intuitive response to such an imposition is to raise a First Amendment claim. However, bareback pornography has yet to receive explicit protection by any legislature or court. This Note takes a step toward assessing bareback pornography’s First Amendment status by first arguing that bareback pornography is sufficiently expressive to merit First Amendment protection under traditional theoretical justifications, doctrine, and emerging arguments for an expanded interpretation of First Amendment protection. This Note then argues that Measure B is a content-based restriction on protected expression and, therefore, should receive the Court’s most demanding scrutiny. Under such a test, Measure B should be deemed unconstitutional.
LawReview
