Saturday, November 24, 2012

Pros and Propholactics Pt. 2 -- Health and Safety Regulation

This is a continuation of a series about LA county mandating condom usage in porn.  Part I is here.

Advocates of the rule see it as an obviously correct workplace safety regulation: unprotected sex is dangerous, these people are having unprotected sex on the job, let's protect them.

Except that's not fully convincing.  Some jobs are dangerous -- fishing off the coast of Alaska, building a house, repairing broadcast towers.  People die doing this stuff.  But we let them because our society is not all about maximizing safety.

In life there are risks and there are rewards, and generally we trust tort law and the free market to sort that out.  If someone wants to pay you to do something dangerous, he'll have to pay you more.  If someone is negligent or lies to you to put you in a dangerous situation  you can sue them.  When do we depart from that rule?  Do any of those exceptions apply here?  Let's find out!

Reasons for regulating health and safety:

1. Information overload: Consumers gotta consume, and in the modern economy they are faced with a lot of options.  Of the thousands of restaurants in your city, which are safe?  Which brand of toothpaste is safest?  Is the escalator in this mall dangerous?  Tough to say!  In situations like that, where there are big information asymmetries  some people think it makes sense to protect the ignorant party.  Rather than being paralyzed having to research a hundred restaurants  you can just show up and be pretty confident some official has inspected the kitchen.  Score.

This doesn't really apply in this case.  The porn stars aren't random people who wandered onto a set, this is their profession.  They're aware of the safety precautions that have been taken (mandatory testing), the safety precautions that haven't been taken (no condoms), are comfortable with that mix.

2. Tough Bosses: The "let's just let the free market work it out" rule implies that employees and workers will negotiate the "correct" mix of safety and danger.  A lot of people aren't comfortable with that, and think that employers have some coercive power over employees, maybe because of transactional costs (hard for employees to unite and negotiate as one), maybe because of the market just not being a magical cure-all, whatever.  So the workers want a safety railing and the evil plutocrat says "no!"  Society passes regulations to get them that railing.

This certainly doesn't apply in this case: it's for situations where management and labor are fighting, but teh porn stars oppose this regulation as heartily as the owners.

3. Human Rights: Some things are just wrong and people shouldn't be allowed to do them.  Lots of people think you shouldn't be able to sell yourself into slavery, or work an 11 year old for 12 hours a day in a factory, or whatever.

I don't think this applies here.  Lots of people think you shouldn't be able to sell sex, but no one thinks you shouldn't be able to have sex without wearing a condom.  Condom-less sex is not the sort of act so insulting to human dignity that we want to ban it.

4. Externalities: Management and labor agree that they are causing the right amount of pollution, but maybe the dude downstream for where they are dumping the toxic waste disagrees.  We impose regulations on things that could be seen from a worker-safety perspective -- handling toxic waste -- because we are actually worried about other people -- the civilians downstream.

I don't think this applies here.  Yes, people who have condom-less sex risk contracting and spreading disease.  But that's true of people who are doing it professionally and people who aren't.  If this regulation isn't targeted at protecting porn starts, its protecting everyone, everyone should be willing to live by the same rule (IE, condom-less sex should be banned society wide).


So of all the traditional reasons I can think of for workplace safety regulation, none of them seem to apply here.  This looks a lot more like "I know this is a risky job, but it's not crazy risky ("porn star" is not the most dangerous job in America, by a long shot), my boss is taking some reasonable precautions  and I'm getting paid a premium for the danger.  Let's do this."  And in a free market society, that's pretty much how we apportion risk.

Did I miss something?

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