LOS ANGELES – “The whole thing about this is that the public is not getting the truth about this. This is not protecting actors from disease. What it is…it’s an orchestrated effort to try to shut down the adult industry, and this is the way they’re doing it.”

That’s a quote from Larry Flynt, discussing the 9[SUP]th [/SUP]Circuit’s ruling in Vivid v. Fielding, the challenge to the Safer Sex in the Adult Film Industry Act. Flynt disputes the idea the act is merely a measure to prevent adult performers from exposure to HIV and other sexually transmitted diseases.

Does he have a point?

There are two basic, reflexive reactions to Flynt’s comments. One is to assume he’s just playing the censorship card in a cynical attempt to redirect the focus of the debate. Flynt knows the industry itself is very receptive to the idea it is being unfairly persecuted.

The industry’s persecution complex is an understandable byproduct of spending decades looking over its collective shoulder and waiting for the raid to come. The paranoia began back in the not-so-good-old-days when porn was, at best, a quasi-legal business operating under a legal standard even more maddeningly vague than the Miller Test.

Many in the industry felt (and continue to feel) the same way about 2257 regulations. To them, the regulations feel like what an attorney friend of mine calls a “Capone Law” – legal mechanisms by which the government can take down targets they can’t get in the direct means by which they’d prefer to bring them down.

Just as the government used tax laws to bring down Al Capone, a mobster against whom it was understandably hard to find witnesses willing to testify, they could use 2257 to nail a pornographer rather than rely on the difficult-to-prove charge of obscenity – or so the Capone Law argument goes.

Does the condoms mandate have “Capone Law” potential with respect to the entire industry, as Flynt suggests?

While the idea of the law itself being the instrument of the industry’s demise directly, through fines and other punishments, seems a stretch, I think Flynt’s greater concern is consumers will so dislike seeing condoms in porn, even those still willing to buy porn (as opposed to watching it for free on tube sites) will lose their willingness to do so.

I don’t know whether this concern is warranted. Time will tell, I suppose. What interests me, though, is a subtler aspect of the condoms mandate, and it brings us to the second reaction to Flynt’s comments.

Maybe he’s not cynical. Maybe he’s right.

While I don’t know whether I agree the condoms mandate is an attempt to bring down the porn industry, I do believe it represents an end-run around the First Amendment, even if the 9[SUP]th[/SUP] Circuit didn’t see it that way. I don’t think, however, the condoms mandate is the government’s means of maneuvering around the protections of the First Amendment, so much as it is Michael Weinstein’s chosen tactic.

Within the many, many comments AIDS Healthcare Foundation President Weinstein has made about his desire to see condom use become mandatory in porn, Weinstein has on several occasions bemoaned the fact porn sends the message “The only hot sex is unsafe sex.”

Weinstein has been explicit in his desire to change porn’s message. Yes, he also makes constant reference to the health of adult performers, but I get the feeling changing porn’s message is not an afterthought. Instead, it’s a core element of Weinstein’s mission.

Why does it matter? The question of whether part of the government’s goal here is to change the message of porn is not academic. It could even change the standard of review being applied by the court, because it changes the purpose of the regulation from mitigating a secondary effect of expressive material to regulating the content of the material.

This isn’t the right place (and I’m certainly not the right pundit) to address all the legal ramifications of the possibility Larry Flynt is right about the nature, character and goal of the Safer Sex in the Adult Film Industry Act, but it’s a question that deserves consideration – perhaps even by the U.S. Supreme Court.

Whether Weinstein’s past comments about “changing the message” sent by porn were part of the trial record in the Vivid case – or for that matter, whether the court would even consider his comments to be materially relevant – is up for debate. We do know, however, that when your adversary speaks, it pays to listen. Knowingly or otherwise, your adversary often will tell you exactly what he’s up to and exactly how he plans to get what he wants.

Ultimately, Weinstein might not get what he wants, even if the courts continue to rule in his favor. After all, it’s a great big world out there…and I don’t think too many people in Prague, Amsterdam or Budapest give a particular shit what message Michael Weinstein would like porn to send.