Yesterday, the 9th Circuit Court of appeals ruled against Vivid Entertainment, Califa Productions, Kayden Kross, and Logan Pierce and decided that Measure B would stay in place. The substance of the appeal was that Measure B violated free speech because it was controlling the content.
Sex, nudity, and pornography are frequently offered less protection than other forms of expression. Unsurprisingly, the Court invoked the Supreme Court opinion in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 570 (1991), in which nudity was labeled “nonspeech” by the Court, and state discretion would advise whether or not strippers had to wear pasties and thongs or if they could be naked.
In Barnes…, Nude dancing was dubbed only “marginally” protected and on the “outer perimeters” of the First Amendment, was expressive only because it was dancing. “Although such performance dancing is inherently expressive, nudity per se is not,” wrote Justice David Souter. So the dancers were expected to comply with the state demand to wear pasties and G-strings. This wouldn’t in the Court’s opinion be censorship of any kind, “…it simply makes the message slightly less graphic.”
The message of pornography without condoms, which Vivid, et al, described as presenting a fantasy version of sex (one without fear of disease, pregnancy, etc), was deemed to be too under-the-surface for most viewers. In other words, the Court said that porn was too smart for the people watching it.
“…whatever unique message Plaintiffs might intend to convey by depicting condomless sex,” 9th Circuit Judge Susan Graber wrote, “it is unlikely that viewers of adult films will understand that message. So condomless sex is not the relevant expression for First Amendment purposes; instead, the relevant expression is more generally the adult films’ erotic message.”