Cameron Bay HIV is Cause For Reflection, But Not Deeper Regulation of Porn Industry

HIV-infected porn actors Cameron Bay and Rod Daily recently made an emotional case that condoms should be industry-mandated in adult films. (Last month, both actors tested HIV-positive, prompting a porn moratorium.) It's evidence that the industry is highly effective in self-regulation. 

The recent self-imposed moratorium on the adult film industry has been lifted, allowing for production to resume now that proper testing has been done. While the challenge to prevent infection is a worldwide concern, the challenge is far greater in an industry whose primary function is filming depictions of sex. The adult film industry has been one of the most successful examples of non-governmental regulation. Through the years private initiatives have been far more effective at creating a safer and healthier work environment than the government. The government could learn something from porn, as their successes can make other potentially unhealthy industries like prostitution far safer.

There are typically two kinds of pornography: It depicts either protected or unprotected sex. In 1983, the Supreme Court ruled that the government cannot mandate the use of condoms in pornography, giving the ability to depict unprotected sex First Amendment protection. The idea that pornography is a depiction of sexual activity limits the ability of the federal government to regulate expression in performance. While condoms go a long way to prevent the spread of STDs, awareness about their sexual health is far more effective than any form of protection. 

The porn industry has a high incentive to keep its actors aware of their status for a few reasons. If actors are HIV positive, then other actors won’t want to work with them. If an epidemic spreads, a whole industry of actors becomes obsolete. The actors themselves have no desire to contract HIV. The Free Speech Coalition, the non-for-profit trade group of the adult entertainment industry, has enforced mandatory STD testing every 28 days which has been recently reduced to 14. The organization has also fought against censorship laws, and it’s important to remember that sexual freedom is freedom of expression and association. The production companies have no desire to pay increased medical costs, and have no reason to allow workers who could endanger their business to continue being employed. 

The city of Los Angeles hasn’t been the biggest fan of porn. In 2011, the city council privatized the Adult Industry Medical (AIM) Healthcare Foundation, turning it into AIM Medical Associates, which was led by former adult film star, Sharon Mitchell. The public AIMHF was shut down after the AIDS Healthcare Foundation target the clinic’s abilities and credibility. Right after, the L.A. City Council voted to explore a law that denied permits for film shoots that did not require condom usage. Three months later, the AIDS Healthcare Foundation was a part of a suit that caused AIM Health care to file bankruptcy amid “privacy concerns”. It is truly unfortunate that an organization like AHF took to targeting resources, both public and private, that help prevent the spread of HIV and other STDs in California.    

The closest analog to the porn industry would be the black market of prostitution. Like marijuana, criminalizing it forces it underground, creating a more dangerous industry. It is hard to legally justify allowing filmed contractual sex while demonizing prostitution. Since they are criminals, prostitutes have very few resources for their health, physical safety, and economic security. As a result, prostitution helps spread STDs by lack of transparency and awareness. Prostitutes have no incentive to be honest about their sexual health because if they were, they would lose their job. When prostitutes give a portion of their earnings to their pimps, abuse creates perverse incentives to do whatever it takes to make money. 

Porn regulations, like any other regulation, will never be perfect. That doesn’t mean that the regulations can’t do more harm than good. If you ban unprotected depictions of sex, then you force the filmmakers to produce in a black market much like prostitution. This would create a subset of the industry that would have little incentive to be honest about the status of its actors, and inadvertently promote unhealthy working conditions and even unhealthier examples to society. This isn’t the way to promote public health, and obstruction of sexual freedom remains another example of how the government tries to control your body.