AVN News

Measure B: It's More Than Just Condoms!

A guest editorial by attorney Allan Gelbard

Oct 03rd, 2012 02:22 PM

With all the discussion about Measure B, the Los Angeles County ballot initiative which seeks the adoption of the "Safer Sex in the Adult Film Industry Act," something rather astonishing has been overlooked. The ordinance would require performers in adult films to wear more than just condoms. It requires them to wear HazMat suits. Yes, really.

Measure B is the Frankenstein's monster of Michael Weinstein, the head of the benevolent-sounding AIDS Healthcare Foundation (AHF). How, oh how, could one vote against a ordinance to protect people from AIDS? Because that is not what Measure B does.

Mr. Weinstein's stated intent for Measure B is to force the government to require the adult entertainment industry, under penalty of criminal law, to promote what Mr. Weinstein has decided to be a preferred "safer sex" message. Weinstein wants every adult film shot in Los Angeles County to show sex only if condoms are used. However, as Measure B actually requires far more, Mr. Weinstein's actual motivation must be seriously questioned.

A few facts:

1) The industry already has a comprehensive and effective testing system in place. Performers are regularly tested for STDs and are not allowed to perform unless they have a recent clean test.

2) Because of the existing testing protocol, incidents of sexually transmitted disease are significantly lower in the adult industry than in the general population.

3) The two "poster children" AHF trots out as their examples of industry-related exposure can't prove they were exposed to HIV while filming.

4) Weinstein bankrolled the legal takedown of the industry's first HIV testing facility, AIM, and now spends millions of dollars promoting Measure B.

Why would Weinstein spend the millions of dollars—presumably donated from people who actually want to prevent the spread of AIDS—on Measure B, instead of on research, outreach to at-risk communities, or providing medical treatment to those already infected?

The answer appears in the language of the proposed ordinance. Mr. Weinstein has written the regulation in such a way that it would require far more than just the use of condoms. Measure B requires all performers to use, at a minimum, condoms, latex gloves, dental dams, goggles and face masks.

Measure B requires all producers of "adult films"—including married couples who webcam in the privacy of their own homes—to get a permit, at a cost of many thousands of dollars. To get a permit, they must also employ an "exposure control plan" that complies with California Code of Regulations Title 8 §5193, the California workplace regulation relating to the control of hazardous substances. The statute was created to protect workers in California hospitals, medical clinics, and testing labs, but was never intended to—nor could it—apply to the making of adult films.

Under Measure B, it would require adult film producers to provide, and to insure their employees actually use, "appropriate ... equipment such as, but not limited to, gloves, gowns... face shields or masks and eye protection... mouthpieces... pocket masks, or other ventilation devices" where "reasonably anticipated skin, eye [or] mucous membrane... contact with potentially infectious materials" such as "semen, vaginal secretions... saliva... [or] any other body fluid" might occur. You know, like kissing...

So, if Measure B passes, it will only be legal to make adult films in Los Angeles if the performer can't actually have any actual physical, skin-to-skin contact with each other.

This is not the first time anti-porn zealots have tried to use laws that, at first blush, don't apply to adult entertainment in order to crush an industry of which they disapprove. In the mid '80s, several right wing conservative prosecutors in California tried to use the prostitution and pandering laws to shut down the industry. But in 1988, the California Supreme Court held, in People v Freeman, that prosecuting adult producers was not the intent of the prostitution or pandering statutes. It also held that attempting to use these laws against the makers of adult films was "an end run around the First Amendment." That is exactly what Measure B is.

Mr. Weinstein has forgotten—or deliberately ignores—that the First Amendment prevents the government from compelling speakers to expound a favored message. In the 1998 case of Riley v National Federation of the Blind of North Carolina, the United States Supreme Court held "[t]he First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it." In 2000, the California Supreme Court held, in Garawan Farming v. Lyons, that the First Amendment "is put at risk both by prohibiting a speaker from saying what he otherwise would say and also by compelling him to say what he otherwise would not say." Simply put, the First Amendment prohibits Los Angeles from compelling the use of condoms in the making of adult films.

Mr. Weinstein is certainly free to urge the adult industry to promote safer sex practices. If he owned an adult video store, he would be free to carry only safer sex films. But he is not free to force the government—through lobbying, frivolous lawsuits, or through the abuse of the initiative process—to violate the Constitutional rights of the producers of, and performers in, adult-oriented entertainment by compelling them to only express themselves, sexually or otherwise, in a manner that he deems acceptable.

Mr. Weinstein also claims—falsely—that "not one cent of taxpayer money will be spent." Thousands of local jobs and billions of dollars in revenue—and the resulting millions of dollars in tax revenues—are at stake. The county will be sued if Measure B passes, and it will lose. Measure B will be found to be an unconstitutional content-based restriction on speech by any reasonable court. Worse yet, as the law would violate both the state and federal Constitutions, the County will have to pay not only its own attorney's fees, but also the attorney fees for the adult industry litigants, which may run into the millions of dollars. Guess where those dollars will come from? Not from Mr. Weinstein or the coffers of AIDS Healthcare Foundation...

Mr. Weinstein is trying to dictate what the viewers of adult entertainment should be able to watch. He believes they are too immature, or too stupid, to differentiate between fantasy and reality. He must truly believe this, because if all the people in Los Angeles that enjoy a little porn from time to time are smart enough to actually research what Measure B requires, and then vote, Measure B will go down to defeat faster than would the sales of adult films in which all the performers are forced to wear HazMat suits.