Recently, there has been much discussion about whether performers in the industry who are HIV+ or Hep C+ or even previously infected with a disease such as syphilis should or could be allowed to perform again, even with condoms. This author has seen numerous tweets, forum message board posts and comments debating whether a production company could knowingly discriminate against a performer who has been infected with a non-curable disease that would be considered a disability under the ADA (Americans with Disabilities Act).
Many commentators and arm-chair attorneys have put forth the notion that to not allow such performers to work in the adult entertainment industry as performers in front of the camera would amount to an unlawful discriminatory act, actionable in court. While this might be true, employers do have a defense to such if they can establish that the infected employee is a “direct threat to the health and safety” of the other performers on set. OSHA and CalOSHA require that all workplaces are safe and free from hazards for all employees.
The direct threat defense is a narrow exception to the general rule that employers may not discriminate based on disability. An employer’s determination that an employee poses a direct threat cannot be based on fears, misconceptions, or stereotypes about the employee’s disability. The employer must make a reasonable medical judgment, relying on the most current medical knowledge and the best available objective evidence.
In deciding whether a direct threat exists, an employer should consider:
- the duration of the risk
- the nature and severity of the potential harm
- how likely it is that the potential harm will occur, and
- how imminent the potential harm is.
These factors must be weighed against each other to decide whether a direct threat is present. Even if an infected performer is using a condom does this negate any and all possibility of transmission of HIV or other various bloodborne pathogen illnesses during a scene ? What if the condom breaks ? What if the male performer prematurely ejaculates inside of the vaginal or anal cavity or his co-performer ? What risk is there to other members of the crew ? These are questions that need to be answered and addressed by not only the production company staff but also their medical team.
In 2002 the United States Supreme Court squarely decided this issue in the seminal case of Chevron USA Inc. v. Echazabal. Mario Echazabal worked at Chevron’s El Segundo, California oil refinery for some twenty years. During this time, he worked as a laborer, helper, and pipefitter for various maintenance contractors, primarily in the coker unit. In 1992, Echazabal applied to work directly for Chevron at the refinery’s coker unit as a pipefitter/mechanic. He again applied in 1995 for the position of plant helper. On both occasions, Chevron determined that Echazabal was qualified for the job and could perform its essential functions based on his past work history, and extended Echazabal job offers contingent on his passing a physical examination. In late 1993, Echazabal was diagnosed as having chronic active Hepatitis C.
After examination and review, Chevron’s physicians concluded that Echazabal should not be exposed to the solvents and liver-toxic chemicals in the refinery and Chevron withdrew its offer to hire him. They reached this conclusion even though Echazabal’s physicians had not issued any restrictions precluding him from working in the refinery.
Chevron’s decision was based on a medical assessment-which Echazabal contested was not grounded in current medical knowledge or the best available objective evidence-of the ability of Echazabal’s liver to cleanse itself of the chemicals to which he had been, and would continue to be, exposed in the refinery.
The Supreme Court held that before excluding Echazabal as a direct threat, Chevron was required under EEOC regulations to show that it had made an individualized assessment of his then current ability to perform essential job functions. This evaluation was required to have been derived from current medical knowledge and objective evidence.
The EEOC regulations, which were upheld in Chevron, set forth four factors for determining whether a direct threat exists: (1) the potential duration of the threat; (2) the nature and severity of the threat; (3) the likelihood that the threat will occur; and (4) the imminence of the threat. The Supreme Court found this approach reasonable because it supports a particularized analysis of the harm to the employee.
Even though Echzabal posed no harm to any other employee, his Hepatitis C combined with the exposure to the toxins at the refinery posed a threat to his own life. The Supreme Court held that even a threat to one’s self was enough to find that Chevron did not discriminate against Echzabal and remanded the case back to the Ninth Circuit for further hearings. Under the EEOC regulations, Chevron bore the evidentiary burden of establishing the existence of a direct threat. The individualized determination of direct threat also required Chevron to prove that possible accommodations were examined and found not to exist within reason.
I have highlighted that last sentence since it is so important in this matter. While it may be medically possible to determine that a HIV+ or Hep C+ performer is a “direct threat” under the four factors (again each case is different and will be factually based on how and what type of content each company produces) it does not mean that you can simply not hire that performer for any position on the set. It would be recommend that if another position is available (camera person, production assistant, videographer, lighting, craft services ect) that does not require the possibility of fluid transmission, that the HIV+ or Hep C+ performer be employed in that capacity. There is no basis under the “direct threat” defense that an HIV+ or Hep C+ person could not work in any other capacity on set. Failure to accommodate a potential employee’s medical condition can and will likely result in a claim of discrimination with the EEOC or California’s equivalent FEHA.
Therefore, this author cautions any studio or employer in the adult industry that is faced with the potential hiring of an chronically infected performer to seek the legal advice of an attorney experienced and knowledgeable in employment law before making any decisions or even comments to the potential performer. Remember, each potential hire will require an individual assessment as the direct threat. A studio cannot make a blanket decision that they will simply not hire a chronically infected performer.
Even those these regs were leaked last week they have now been officially released by the California Department of Industrial Relations and CalOSHA. The regulations (California Code of Regulations sec 5193.1 ) are attached below.
Here is the email that was sent today by CalOSHA.
Thank you for your participation in this project. The Division has edited the previous draft, which was provided in June 2011. This draft has been sent to the Board staff for their review. It is not a rulemaking proposal at this time. The draft can be found at:
Additional information is also available at: http://www.dir.ca.gov/dosh/DoshReg/5193Meetings.htm
If you have any questions or comments, please contact Amalia Neidhardt, Senior Safety Engineer at email@example.com .
Thank you for your interest in this project.
Amalia Neidhardt MPH, CIH, CSP
Judge Pregerson rules some parts of Measure B are constitutional while others are unconstitutional.
This is the initial ruling we have all been waiting for from the Court. Judge Pregerson has decided that condoms in porn do not violate the First Amendment, however, he did go on to find that much of Measure B does violate the Constitution.
Note: This ruling by the court was on Vivid et al. request for an Order enjoining Measure B from being enforced as well as AIDS Healthcare Foundation’s motion that Vivid’s case be dismissed in its entirety. The case will continue since neither side won a total victory. Vivid was able to convince the Judge to block certain aspects of Measure B while not being able to convince the Judge to enjoin all of Measure B. And AHF could not convince the Judge to dismiss all of Vivid’s claims.
Interestingly, the Judge has allowed the requirement that a producer secure a permit prior to shooting an adult scene or movie. However, he has basically limited the County’s ability to suspend or revoke the permit. The Judge has determined that just allowing the County to have the ability to decide what is or is not a violation would be considered “prior restraint” and is unconstitutional. Judge Pregerson went on to note that the County would have “unbridled discretion” if they were allowed to revoke permits and suspend filming if there were any type of potential “harm” including even a cameraman having a cold.
Furthermore, the County of Los Angeles will not be able to conduct warrantless searches of producers. And once a warrant is obtained, if a violation is found, a fine or criminal penalties could not be imposed without a judicial hearing.
The Court also went on to find that Measure B does not define adult films sufficiently since “adult films” may be a movie that contains activities such as kissing which could possibly transmit disease since saliva contains infectious materials.
Also, the County cannot impose fees under Measure B for permits.
Here are the Judge Pregerson’s own summary of his decision;
“Here, adult film actors must still use condoms. A permit is still required. Although the permit may not be modified, suspended, or revoked, fines and criminal charges may still be brought against offenders, as described in footnote 23. While administrative searches cannot occur, nothing prevents law enforcement from obtaining a warrant to enforce Measure B. Regarding fees, since there is no evidence that Measure B’s fees are revenue neutral, there is no reason to believe the Department’s Measure B duties cannot be performed without fees–or performed at least until the fees’ defect is cured, either by enacting a new, constitutional ordinance or providing this Court with evidence of revenue neutrality.”
In short, we still have to contend with Measure B, but the fees are gone, the searches are gone, the permit stays but it cannot be suspended or revoked without a proper court proceeding and thus producers cannot be forced to “shut down” and prevented from shooting other movies.
So AHF wins some and Vivid wins some… All in all – Measure B will now be much harder to enforce than it already is. But condoms remain a required aspect of shooting porn in Los Angeles County and California. The real question is does the County want to enforce a condom law that will now require a warrant for a search in order just to find violations.
In my opinion, I doubt the County will have the man power, the resources or the funding to start searching sets especially since they will not be able to charge fees for their permits.
Click here for a copy of Judge Pregerson’s Ruling;
When discussions about piracy occur in the adult entertainment industry they usually center around the DMCA (Digital Millennium Copyright Act ) and how it really does not protect content producers. The DMCA allows for a take down notification system that, if adhered to by a content pirate, almost provides them a “license to steal.” Further, if the pirate website is registered with the US Copyright Office as an ISP they would also be provided with a safe harbor exception to the DMCA. Further, from my experience, it is almost impossible to get adult content producers to follow a regiment of copyright registration to ensure that all of their hard work is at least protected by having a registered copyrights. Since piracy has become more of a pestilence in the adult industry we have also seen new cottage industries pop up such as IP tracking and litigation against bit torrent uploaders as well as DMCA take down notice companies such as Take Down Piracy ( http://www.TakeDownPiracy.com ).
What I am surprised about is how trademark law has been overlooked in regards to protecting content. Many might be asking themselves how can I protect my videos with a trademark. My answer is the same way that Nike protects its brand with the “swoosh” or Apple does with its “bitten apple logo.” A watermarked logo inserted into your content is not only a legal deterrent to content theft but if used correctly it can also be a practical approach to make a content pirate’s job much more difficult.
There is no corresponding law in trademark to the DMCA in copyright. Meaning you cannot simply use someone trademark repeatedly and get away with it scott-free. Of course there are exceptions to using another company’s logo or trademark (fair use and by competitors to compare and contrast) but there are much less exceptions provided by the Lanham Act in regards to copying someone’s video and posting them on a bit torrent site or tube site. The Lanham Act is silent to the issue of contributory trademark infringement but courts have for years used contributory trademark infringement as a way to stop piracy.
And not only can a trademark infringement claim reach the actual pirate website it can also reach the hosting company of that infringing website.
“Liability for trademark infringement and unfair competition may be extended beyond those who actually sell goods with the infringing mark, to include those contributory infringers who knowingly cooperate in illegal and tortious activity.” J. Thomas McCarthy, McCarthy On Trademark and Unfair Competition (2002) §§ 25:17, 18, referencing Warner & Co. v. Eli Lilly & Co., 265 U.S. 526 (1924) (applying common law concept of contributory infringement).
In a case reaching back to the earliest days of the Internet, Playboy Enters., Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993) the Defendant operated a subscription computer bulletin board service that distributed unauthorized copies of copyrighted photos owned by Playboy magazine. The photos were uploaded onto the bulletin board by an end user and downloaded by other end users. The operator of the bulletin board claimed he did not upload any of the images and that he removed all of them once he became aware of the problem. In addition to granting partial summary judgment for plaintiff on its copyright claim, the court found that allowing the use of the PLAYBOY and PLAYMATE trademarks to identify files on the bulletin board containing the photographs was a trademark violation, regardless of whether the operator was aware of the presence of the marks or not.
More recently, the Ninth Circuit Court of Appeals held that an ISP may in fact be liable for contributory trademark infringement. In Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936 (9th Cir. 2011). Plaintiff Louis Vuitton Malletier S.A. is a producer of various luxury goods. Defendant Akanoc Solutions, Inc. is web-hosting service. From 2006 to 2007, Vuitton sent eighteen notices of infringement to Akanoc documenting trademark and copyright infringement on websites hosted by Akanoc that sold counterfeit LV goods and demanding that Akanoc remove the infringing content. Akanoc completely ignored the demands of Louis Vuitton. Vuitton sued for contributory trademark infringement/counterfeiting and copyright infringement. The jury returned a verdict for Vuitton, holding Akanoc liable for willful contributory trademark and copyright infringement. The jury awarded $10,500,000 for contributory trademark infringement/counterfeiting against each of the defendants for a total of $31,500,000. The decision was affirmed on appeal.
One of the more important aspects of the Ninth Circuit’s holding was that there was no need to find that the ISP, Akanoc, had any intent to engage in trademark infringement. Vuitton only had to prove only that Akanoc “provided [its] services with actual or constructive knowledge that the users of their services were engaging in trademark infringement.” This was accomplished through the repeated notices sent by Vuitton to Akanoc making them aware of the ongoing trademark infringement.
While this is somewhat an oversimplification of the court’s lengthy holding what it does set forth is that an ISP, normally immune from a lawsuit for copyright infringement, can be made to pay if they ignore trademark infringement notices – at least in the Ninth Circuit which includes California, Nevada and Arizona, states where many of the adult content production companies are located.
From a practical standpoint what does this mean ? If you are a content retailer you should have all of your content 1) registered with the US Copyright Office 2) have a logo watermarked onto all of your content and 3) register that logo with the US Patent and Trademark Office.
With a registered trademark watermarked onto your content you will have a much stronger demand letter to send to not only the infringer but also to the ISP to make sure that your content is removed from any bit-torrent or tubesite. If the ISP ignores repeated requests or allows the content to go back up this will provide the basis for a Lanham Act lawsuit to be filed on your behalf by your attorney. It should be noted that attorney’s fees can be awarded by a judge in cases of successful Lanham Act lawsuits as well.
From a practical standpoint you can register the trademark yourself using a service such as Legal Zoom, however, I do recommend that you seek counsel on this particular type of filing since it will more than likely be litigated at some point. An experienced IP attorney will be able to strengthen the registration of the trademark so as not to leave it open to attack as a defense tactic of the ISP.
Finally, in regards to the actual watermark on the video, many adult content consumers do not care for watermarks. Obviously, this will be a decision you will need to make and balance the desires of your customers versus your company’s needs to protect your content. The suggestion I have made to other content producers is to watermark the video with a logo that fades in and out of the video, moving it from corner to corner of the video and alternating the length of time the video stays visible as well as the pattern of its appearance in your video. This will make it even more difficult for any pirate to sit and watch your content frame by frame to block or obscure your watermark to get around any potential claim of trademark infringement.
by Attorneys Greg Piccionelli and Michael W. Fattorosi
Since the Election Day many industry members have been speculating as to what happens now that Ballot Measure B has passed and will eventually become law in some or possibly all of the 85 independent towns and cities in Los Angeles County. We have noticed a somewhat panicked approach to how the industry can survive and continue to thrive in Southern California and especially Los Angeles, the home of adult motion picture entertainment since the 1950s. As an industry, we have a 50 year relationship with California and Los Angeles that cannot change quickly, and, in our opinion, when viewed from a legal perspective, should not change quickly. Judicial opinions in California provide far more legal protection than any other state that currently also has a developing production industry.
Some have speculated that the industry should pack up our tents and relocate to Las Vegas or perhaps some other part of Nevada. Many believe that since the industry has a relationship with Las Vegas either by virtue of the AVN Awards or because there are other studios now producing there it will be a friendly home.
While Las Vegas may eventually become the home of the industry, now is not the time. As attorneys, we cannot ethically advise our industry clients to move to Las Vegas to produce sexually explicit content in a state where there are, at least at the present time, no legal protection to shield producers and performers from potential prosecution under its pandering, prostitution, and other laws. California and New Hampshire are the only two states in which there are controlling judicial precedents providing such protection. Therefore, this should be made very clear: commercial production of sexually explicit content outside one of the those two states places any production company and performer doing so in jeopardy of serious criminal prosecution. Therefore, there is not, in our opinion, currently sufficient reason for a company to take such a risk while over 99% of the state of California currently remains legal for production.
If the Nevada State Legislature were to amend their current laws, or if the courts of Nevada were bound to a judicial decision holding reflect that hardcore porn production would be a protected under the First Amendment or the free speech provisions of its state constitution, the industry would have the kind of legal protection required to legally shoot commercial adult content. Unfortunately, that is yet to happen. When and if it does, perhaps then would be the time to seriously consider a move to friendlier pastures. However, as those legal protections simply do not currently exist, now is not the time.
Ballot Measure B is not a state-wide initiative. It only applies to Los Angeles County. Therefore, at this point, a costly and legally risky move out of California entirely is not required to avoid its applicability. However, a move out of Los Angeles County, like the one that has been discussed by Steven Hirsch of Vivid Entertainment in Variety Magazine, could certainly be a possibility. Ventura County, as well Riverside County and San Bernardino County are all three relatively close counties in which Ballot Measure B will have no effect (Note: Simi Valley in Ventura County did in fact pass a measure similar to B therefore it is recommended that no one produce in Simi Valley as well).
Three cities even closer to the San Fernando Valley then the counties discussed are Pasadena, Vernon and Long Beach. Under current law in those municipalities, Ballot Measure B cannot be adopted by any of those three cities. Pasadena, Vernon and Long Beach all have their own health departments and do not contract with the Los Angeles County Department of Health. Therefore, an inspector from the Los Angeles County Department of Health does not have jurisdiction to enter those cities to check production company headquarters for permits and condoms. Therefore, under current law in those cities, it simply cannot lawfully happen.
Ballot Measure B is a two-part law. The first, more stringent part of the law are the sections requiring all producers in Los Angeles County to secure health permits and use barrier protection. This is really the crux of the law. And that is what makes B so expensive for production companies. We do not know how much these health permits will cost but estimates of $2,000 to $30,000 a year have be discussed.
The second part of the law are the sections discussing film permits. As you are probably aware, any commercial filming in Los Angeles requires a film permit secured from FilmLA. Ballot Measure B does not change that. As most of you are aware if you film in Los Angeles without a permit and are apprehended doing so by law enforcement you can be charged with a misdemeanor crime. You may also have your equipment confiscated and held until your first court appearance.
Ballot Measure B does not change any part of the law in regards to shooting without a permit. In actuality, Ballot Measure B proscribes no differences in criminal charges for shooting without a permit and shooting without a permit and without barrier protection. There is no increase in penalty for getting caught shooting without barrier protection – unless the production company is located within Los Angeles County and then there would be an increase in penalties for having a health permit but not using barrier protection.
It should be noted that according to an legal opinion provided to the Los Angeles County Board of Supervisors by its counsel, Ballot Measure B will not apply to out of state production companies that are also headquartered outside of Los Angeles County. If your production company was incorporated and is located in a city outside Los Angeles County, for example, Las Vegas, Phoenix, North Carolina or even Canada, the health permit aspects to Ballot Measure B cannot be enforced on your production company. Again, the Los Angeles County Department of Health inspector has no authority to visit you company headquarters in one of those states to perform an inspection.
In our opinion, Ballot Measure B can easily be worked around while staying fully compliant with the law (when it does go into effect). It does not require the exodus of the industry from Southern California or even Los Angeles County. We should remain united towards the end goal of defeating Measure B via a legal challenge that will be brought by the Free Speech Coalition. Until then, the sky isn’t falling and we should all remain calm.
The opinions stated in this story should not be viewed as legal advice. Therefore, if you have legal counsel, you should call him or her soon to discuss how Measure B will impact your business. This applies equally to established production companies, talent as well as webcam companies. Measure B does not distinguish between different types of production.
If you do not have counsel, either of us would be more than happy to set up a consultation to develop a specific plan for your business. Michael can be reached at his office at (818) 881-8500 or via email at michael(at)fattlegal.com. Greg can be reached at (818) 201-3955 or via email at greg(at)piccionellisarno.com.
Update: SAN FRANCISCO—The ACLU of Northern California and the Electronic Frontier Foundation won an initial court victory yesterday when a federal judge agreed to temporarily halt enforcement of a part of Proposition 35, the so-called human trafficking state initiative that was passed by voters Tuesday.
“Voting for Proposition 35 undermines the basic civil liberties of the very victims the proponents say they care so much about. I highly doubt the voters understood that fact or how their votes will work toward the detriment of victims rights instead of protecting victims of trafficking.” Maxine Doogan
Tuesday’s vote was deeply disappointing to all who believe in basic civil and human rights for trafficked victims and sex workers under the law.
All Americans are harmed when any of us are discriminated against. By conflating sex workers’ families and communities with traffickers and mandating that adult consensual sexual behavior be punished with mandatory registration on the sex offender registry, fundamental human rights are criminalized.
The unintended consequences and cost to California under Proposition 35 have only started become realized. The American Civil Liberties Union’s Northern California and Electronic Frontier Foundation have filed in federal court and received a temporary restraining order against the provisions that mandated those on the sex offender registry immediately provide to the police a list of internet identifiers on Wednesday.
Meanwhile, we remain committed to ending discrimination and ensuring equal protection under the law and restore human, civil and labor rights to victims of human trafficking and sex workers alike. All workers deserve to be treated fairly regardless of whether their labor is criminalized or includes circumstances of exploitation.
Prop 35 debates didn’t garner much public discourse outside the usual media political forums, which left voters to rely upon the appeal of the measure’s title resulting in a rubber stamping of the bait and switch ballot measure.
It is of course its disheartening to see so much ill will and indifference towards victims of trafficking, sex i workers, our families and larger communities. We’d like to thank those erotic service providers and supporters who stood up and risked so much to speak out without the benefit of equal protection under the law .
It was the first time in modern history that a prostitute led a statewide ballot measure. Completely unfunded, the Erotic Service Providers Legal, Education and Research Project is proud to have called into question the means and motives of those who conflate sex workers, their families and larger communities with sex traffickers and registered sex offenders.
The small band of volunteers gave selflessly, standing up for trafficked victims rights which will be lost under Prop 35. Groups like Black Women for Wellness, victims service providers, academics, international and local sex worker rights groups joined together while Democrats and Republicans as well as clergy and educators contributed to the distortions against us by never bothering to hear from the state registered opposition of this measure.
With limited access to free speech in general and political speech specifically, sex worker groups like other marginalized groups face chronic underfunding. Under prop 35, we now expect to have our doors busted down under the guise of rescuing us as victims from our domestic, familial and economic relations. We expect the Asian massage parlors, workers of color and LGBT to be the first targets as they’ve been most maligned in the press and the public sphere.
We know that our lives still matter and our contributions are still valuable. We will continue our effort to end the unconstitutional anti prostitution laws to gain access to equal protection and privacy that everyone else enjoys by building on the support and solidarity generated in this campaign.
Special Thanks to Erotic Service Providers Union, US Prostitutes Collective, Bayswan, SWOPBAY
Maxine Doogan, President ESPLERP
Erotic Service Providers Legal Education and Research Project
2261 Market Street # 548
San Francisco, California 94114
Ph: (415) 265-3302
Veronica Monet, Sexologist and Radio Host
206 Sacramento Street Suite 206
Nevada City, CA 95959
Ph: (415) 407-2932
As most of the readers of this site already know Ballot Measure B was passed by the voters of Los Angeles County yesterday by a margin of 56% to 44% with approximately 2,000,000 votes cast. The question now becomes – what happens now ? Are condoms now required on all shoots under Ballot Measure B ? (Note: Remember Cal-OSHA regulations now require barrier protection for all shoots where there is an employer-employee relationship) When does the law go into effect ? What if I don’t use condoms what will happen ? What if I move my production company and/or shoots out of Los Angeles County ? Will the FSC or a studio file a legal challenge to Ballot Measure B ?
All of these questions are quite complex and will be answered in this and subsequent articles as more information and analysis becomes available. There is still a lot of uncertainty as to Ballot Measure B. What is certain is that this fight has only begun. I do not anticipate that the industry will just accept the Ballot Measure B and move on. The opposition to B will now move towards a city by city fight and/or a legal challenge.
Where and When Does B Take Effect ?
As I wrote on September 25, 2012 Ballot Measure B will ONLY apply to the unincorporated areas of Los Angeles County when it is certified by the Los Angeles County Board of Supervisors ( http://adultbizlaw.com/what-youre-not-being-told-about-the-condoms-in-porn-law/ ). In order for this law to take effect in cities such as Los Angeles, Glendale, Malibu or any of the 85 independent towns and cities in Los Angeles County – each one of those cities will have to independently debate, vote on and themselves pass/adopt Ballot Measure B as law in their town. How long will that take is anyone’s guess at this point. And it is not certain that all 85 independent towns and cities will even adopt Ballot Measure B. I can envision a situation in which some of the smaller towns that do not have any contact with the adult entertainment industry will simply ignore this law entirely.
Here is a list of the cities that can adopt the law now that Ballot Measure B has passed;
Agoura Hills, Alhambra, Arcadia, Artesia, Avalon, Azusa, Baldwin Park, Bell, Bell Gardens, Bellflower, Beverly Hills, Bradbury, Burbank, Calabasas, Carson, Cerritos, Claremont, Commerce, Compton, Covina, Cudahy, Culver City, Diamond Bar, Downey, Duarte, El Monte, El Segundo, Gardena, Glendale, Glendora, Hawaiian Gardens, Hawthorne, Hermosa Beach, Hidden Hills, Huntington Park, Industry, Inglewood, Irwindale, La Cañada Flintridge, La Habra Heights, La Mirada, La Puente, La Verne, Lakewood, Lancaster, Lawndale, Lomita, Los Angeles, Lynwood, Malibu, Manhattan Beach, Maywood, Monrovia, Montebello, Monterey Park, Norwalk, Palmdale, Palos Verdes Estates, Paramount, Pico Rivera, Pomona, Rancho Palos Verdes, Redondo Beach, Rolling Hills, Rolling Hills Estates, Rosemead, San Dimas, San Fernando, San Gabriel, San Marino, Santa Clarita, Santa Fe Springs, Santa Monica, Sierra Madre, Signal Hill, South El Monte, South Gate, South Pasadena, Temple City, Torrance, Walnut, West Covina, West Hollywood, Westlake Village and Whittier
And there are three cities that cannot adopt Ballot Measure B. Long Beach, Vernon and Pasadena – all three do NOT contract with the Los Angeles County Department of Health. Ballot Measure B requires that the Los Angeles County Department of Health enforce the law and therefore if Long Beach, Vernon and Pasadena have their own health departments, Los Angeles County Department of Health has NO jurisdiction to enforce condoms on any production company in those cities.
What About Production Companies Located Outside Los Angeles County ?
Having a production company located in Pasadena, Long Beach or Vernon will have the same affect as having a production company located in Las Vegas, North Carolina or even Canada. The Department of Health Inspector cannot travel out of state to inspect health permits nor can they go into Pasadena, Vernon or Long Beach to inspect health permits. They simply do not have jurisdiction to do so.
If you do not have a production company located in Pasadena, Long Beach, Vernon, Canada, North Carolina or Las Vegas it is still going to be a while before this law goes into effect in cities within Los Angeles such as Chatsworth, Woodland Hills and Northridge. The first step is that the election results have to be certified and once certified the Los Angeles City Council would have to vote on and adopt Ballot Measure B. I anticipate this could happen as soon as sometime in January 2013 or it may take months after that. I do believe that the City of Los Angeles Council will adopt Ballot Measure B to replace the “Safer Sex in Film Ordinance” that the City Council adopted last January.
After Ballot Measure B is adopted by the city of Los Angeles when will they begin enforcement is also anyone’s guess. It is difficult to estimate how long it would take rules of enforcement to be adopted by the Los Angeles Department of Health. It could be several months or even up to a year. The City of Los Angeles adopted their own “condoms in porn” law last January and have yet to finish trying to figure out how to actually enforce their law. The same may prove to be true of Ballot Measure B.
What About a Constitutional Challenge to Ballot Measure B ?
We also cannot fully anticipate how any legal challenge on constitutional grounds may play out. It is possible that any person or entity affected by Ballot Measure B would ask the court for an injunction on the enforcement of the law. Whether such an injunction would be granted would also be speculation. It would be speculation to state whether any such challenge would be successful.
I have had several discussions with attorneys who have handled First Amendment challenges before and most are split on the issue of how successful a challenge would prove to be. The success will ultimately turn on the issue of whether a court uses “intermediate scrutiny” or “strict scrutiny” to test the validity of the language of the law. If the court finds that the “intermediate scrutiny” test should be used then it is more than likely that Ballot Measure B will survive a challenge. However, if “strict scrutiny” is the standard used then it is likely that B will fail a constitutional challenge. There was a recent decision in the Ninth Circuit Court of Appeals (Los Angeles County is in the Ninth Circuit’s jurisdiction) that might be helpful in challenging the constitutionality of Ballot Measure B.
The Ninth Circuit ruled that the First Amendment protects yellow pages phone books, rejecting a Seattle law that sought to limit distribution of the phone book. Under Seattle’s 2010 ordinance, the phone book publisher had to pay a fee and obtain a permit for each directory it distributed in the city, and create a list through which residents could decline to receive the yellow pages. During hearings on the new law, numerous citizens testified that distribution of the phonebook violated their privacy and created waste.
Read More at Courthouse News – http://www.courthousenews.com/2012/10/15/51283.htm
This is an interesting case in regards to Ballot Measure B. The Ninth Circuit Court of Appeals held that phone books are entitled to full protection under the First Amendment and therefore the “strict scrutiny” test had to be applied to the permit law. The City of Seattle argued that only the “intermediate scrutiny” test had to be applied and thus the permits helped served to reduce waste, protect the privacy of its citizens and helped the city recover the costs of disposal of the unwanted phone books. As in Ballot Measure B, the City of Seattle wanted the phone book publisher to pay a permit fee to enforce the law.
It is simply too early to state with any specificity as to what is actually going to transpire in the industry because of Ballot Measure B. In the words of William Shakespeare Ballot Measure B might prove to be “much ado about nothing.” Ballot Measure B is a badly written ordinance and is very ambiguous as to its definitions of certain types of productions. It actually raises more questions then it answers and we may not have answers until people are actually prosecuted under the law.
We do not know if it covers content trades between performers. We do not know how Ballot Measure B will apply to “celebrity sex tapes” shot in Los Angeles County. Will the “reality star of the month” be required to force her male co-star to a wear condom to have any chance of selling her sex tape to Vivid for distribution ? If a production company is located in Los Angeles County will it still be required to have a health permit even though they shoot all their content overseas ?
The actual application of Ballot Measure B – if it is ever enforced – will be a legal nightmare not only for the companies affected but also those lawyers defending their clients and a judge that has to figure out what the scope and breadth of the law is. This issue is far from over and B is far from being enforced. It is time to take a deep breadth and get back to work. There is a lot to do in order to fully understand what B really means.
Keep checking back here for more updates as to Ballot Measure B as more information becomes available.
This is the day we have been waiting for since the end of July when the AIDs Healthcare Foundation was able to place their “Condoms in Porn” legislation on the ballot. Today is the day the voters of Los Angeles County decide the faith of personal freedom in our bedrooms and on set. Today is the day that will decide if a small community of former outlaws and outcasts can defeat an over powering multi-million dollar special interest group that is intent on forcing their agenda on not only our industry but the rest of the world. If you do not live in Los Angeles do not think that a ballot measure or law like “condoms in porn” cannot come to your city or state. It can and it will. AIDs Healthcare Foundation has vowed to fight and to go anywhere to force condoms not only on porn but on monogamous couples of any sexual orientation to force them to use condoms in their own bedrooms while they cam.
Ask yourself this – do you want special interest telling you how to live your life ? How to have sex with your partner ? Do you want AHF to set the standard of what is acceptable behavior in the bedroom between two consenting adults ? AHF wants you to think this is a vote about worker safety. When was the last time you were asked to vote on a hard hat ?
Vote No on B and keep Weinstein and government out of our bedrooms !
Here is an excerpt from the speech I gave at the LA Porn Tours Rally on Bus Tour on Saturday, November 3rd;
“On November 6, the voters of Los Angeles County are going to be asked to decide a ballot measure about the sexual rights of a small inclusive community within its borders, a community that is often misunderstood and rarely given a voice, a community that is publicly shunned but privately enjoyed, a community that has fought for its right to exist through years of struggles, court battles and legislation. Those that make up this community only want one thing: The right to choose for themselves how to live and work.
Michael Weinstein wants the voters to believe that the adult industry in Los Angeles is a cesspool of HIV and sexually transmitted diseases. He is playing the fear mongering card, that somehow, if not stopped, the porn industry will infect the rest of Los Angeles. This is a familiar argument to the gay community; this is the argument that was used against them when the world first learned of HIV.
Michael Weinstein… wants to use the industry and their products to send a message. He wants to use porn for nothing more than product placement. That message and that product are condoms. Yet he calls it a workers safety issue. Instead of government representatives, workplace safety experts, physicians and industry representatives working together to develop a comprehensive plan to protect performers without infringing on First Amendment rights, Mr. Weinstein is asking the voters of Los Angeles County to decide workers safety laws. This is unprecedented in California. The public does not and should not vote on the height of scaffolding or the guards on chainsaws. As an industry, we only want the right to decide this issue for ourselves and not have it forced upon us. Performers should have the right to choose. They want their sexual rights…. Measure B is an attack on the industry, it is an attack on performers, it is an attack on the Constitution, it is an attack on the sexual rights of all Americans that want—no, demand—that the government and those like Weinstein stay out of their bedroom.”
(CANOGA PARK, CA) — Adult performers and other adult industry personalities plan to demonstrate their opposition to LA County Measure B with a press conference in Canoga Park and follow-up demonstrations this Saturday, November 3.
“Proponents of Measure B would like you to think that it’s just about using condoms in porn, but that’s not true,” adult-industry blogger Tod Hunter said. “If this passes, adult content will have to be shot under emergency-room protocols. The same rules that protect an ER nurse from the spurting blood of a gunshot victim will apply to professional adult performers — even husbands and wives when they are working together. And producers will have to pay extra for filming permits to pay for inspections of their sets. Measure B is a declaration of war against the adult industry, an attempt to shut it down by smothering it in bureaucratic red tape.”
The press conference will take place at an adult production studio in Canoga Park, and the rallies will follow. The bus transport has been arranged by the organizers of LA Porn Tours, which offers adult-industry fans the chance to see the places where adult content is shot.
“Everybody in the adult industry is doing what we can to defeat this measure,” LA Porn Tours’ Benjamin Free said. “I got a bus, and we’re taking it to the streets.”
The performers are looking forward to the demonstration.
“I believe we performers should have the choice whether to use condoms or not,” performer Alex Chance said. “We shouldn’t be forced into doing things with our bodies that we do not want to do.”
Performers currently planning to join the press conference and rally include Alex Chance, Abby Cross, Shay Fox, Tara Lynn Foxx, Jessica Jaymes, Kagney Linn Karter, Keiran Lee, Tony Martinez, Alexis Monroe, Chanel Preston, Natasha Star, Alison Tyler, Heather Vahn, Taylor Wane and Prince Yahshua, as well as adult industry personalities Michael Fattorosi, Michael Whiteacre, Tod Hunter, photographer Rick and director Mo.
Adult industry professionals who want to participate and mainstream press who want to arrange interviews should contact Rick Garcia on Twitter at @IndustryByRick or Benjamin Free on Twitter at @LAPornTours.