The following article was written by Karen F. Tynan.
Condom initiative isn’t a ‘safe sex’ law
Remember People v. Freeman, 46 Cal. 3d 419 (1988), from law school? When we studied that
case in criminal law class, we learned that the creation of adult content is a protected form of
speech – not a criminal act like prostitution. Since then, California has flourished as the locale of
choice for the production of adult content. Not just for its sunny days and film production
infrastructure, but for its progressive and tolerant legal climate.
For the first four decades of legal adult film, the preferred method for stopping adult content was
either vice busts such as Freeman, or obscenity. Miller v. California, 413 U.S. 15 (1973),
established the three-prong test for obscenity prosecutions, perhaps the most pertinent being that
it violated “community standards.” However, with the shift to internet sales and
distribution, Miller ceased to be much of a threat.
But beginning in 2009, an activist named Michael Weinstein began a new type of free speech
censorship campaign – one which depended not on law, but regulation.
Weinstein is a controversial AIDS activist in Southern California, known for his conservative
moral bent. Billboards across the state attempt to guilt, shame and scare people about sex and
sexually transmitted infections and – despite growing evidence that they are not the most effective
solution for preventing HIV – demand condoms as the singular solution. One could imagine why
the adult industry, which uses an advanced 14-day testing system for adult performers, but only
optional condoms, would be a target.
Beginning in 2009, Weinstein began filing complaints with Cal/OSHA against adult film
producers and performers who did not use condoms in their productions, sometimes filing
hundreds of complaints at a time. In 2012, his organization funded the Los Angeles ballot initiative
Measure B, which required not only condoms, but permits for adult film productions in Los
Angeles. When the city of L.A. called it unconstitutional, and refused to defend the measure once
it passed, Weinstein sued for standing. (After numerous court battles, both sides have settled. The
measure remains effectively unenforceable, though most large producers no longer shoot in Los
This spring, Weinstein introduced Proposition 60, a statewide ballot initiative that would enforce
his condom dictate through a private right of action – any resident of the state of California could
initiate a civil action against anyone with a “financial interest” in an adult production that does not
use condoms, including the performers themselves. Under Prop. 60, producers, agents, retailers,
cable companies, tube site operators could all, also, be liable.
Weinstein has tried to model these proposed Labor Code sections after other private attorney
general act provisions in the California Labor Code, wherein wage and hour violations are
addressed. However, Prop. 60 goes much further in providing for a civil action. Under Prop. 60,
any resident of California can file a complaint against a film where condoms are not visible. If,
after 21 days, Cal/OSHA does not respond in the affirmative that it will be pursuing the alleged
violator, the complaining resident of California may initiate a civil action. Even if Cal/OSHA
indicates that it finds no violation at all, a plaintiff can disagree with those conclusions and pursue
a civil action. There’s no need for them to have any standing, or any relationship to the production.
Prop. 60 is pitched as a “safe sex” law, but it’s not. There has not been a single transmission of
HIV on a regulated adult set in the state since 2004, but that hasn’t stopped Weinstein from touting
his own (non-peer reviewed) data, eliding facts and eliciting fear. Like most moral campaigns,
scare tactics and dubious numbers are used as a pretext to violate constitutionally enshrined rights.
For example, the right to sue “aiders and abettors” on an adult production – one of the key points
in Prop. 60 – is usually a concept in criminal law. Any resident may also sue if they do not see a
condom – a rebuttable presumption that requires any producer, even one using condoms, to go to
court and prove condoms were used. The plaintiff is entitled to 25 percent of any fines levied, and
their attorney fees and costs. And like Measure B, it requires permits for adult film productions,
and the ability to revoke them if there are subsequent violations. But perhaps the best detail is
contained in Section 10 (Page 12 of the proposition) wherein Weinstein himself becomes an agent
of the state of California, taking an oath of office, if the proposition must be defended in court.
Weinstein has learned from his disastrous Measure B – a law that no one else wanted to defend.
Unfortunately, rather than try to understand why no one wanted to defend it, he enshrined in his
new initiative his ability to use state resources to enforce it himself.
The list of opponents of Prop, 60 is long and distinguished – not a group you’d think would band
together to defend the porn industry: the California State Democratic Party, California Republican
Party, the California Libertarian Party, leading HIV/AIDS organizations like the SF AIDS
Foundation and AIDS Project LA, civil rights organizations like Equality California, the LA LGBT
Center, the Transgender Law Center and leading politicians in the fight against HIV such as Sen.
Mark Leno and San Francisco Supervisor Scott Weiner.
Perhaps most importantly, it’s been opposed by the performers themselves, who see how a private
right of action leaves them vulnerable to stalkers, harassers, extorters and profiteers. Even
performers who do use condoms have spoken out and protested this retrogressive and dangerous
method of enforcement.
Michael Weinstein’s AIDS Healthcare Foundation has a yearly budget of $800 million. The
industry, struggling with piracy and an increasingly dispersed industry, is not nearly as well
funded. While the adult industry remains a part of the vibrant California economy, the industry
cannot remain in California under such harsh and punitive tactics like Prop. 60. Regardless about
how you feel about adult film, it’s important that we not set a precedent in suing and harassing
workers based on a morals campaign.
Daily Journal August 23, 2016
|Karen F. Tynan is a Sonoma County attorney practicing in
the areas of employment and regulatory law. She also defends
adult entertainment companies against Cal/OSHA citations
and regulatory prosecutions.
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