Monday, October 19, 2009

More on the AIM/Cal-OSHA Court Decision

Anthony kind of jumped me on this, but AIM has a more complete press release account I wrote yesterday that I believe went out today. It outlines some of the broader issues at stake, and though it reflects our relief over Judge Smith's wise decision, it addresses the serious problems that remain, particular for small, independent producers, and for AIM itself:



AIM’s Financial Woes From Litigation Costs Remain a Threat to Organization’s Continued Operation

On October 15, 2009, California Superior Court Judge Winifred Y. Smith granted a preliminary injunction blocking efforts by Cal-OSHA to force The Adult Industry Medical Healthcare Foundation to supply the safety agency with privileged information regarding an adult video performer who tested positive for HIV at one of AIM’s clinics in June 2009.

Concluding sixteen pages of closely-reasoned argument backed by statutory restraints and existing case law, Judge Smith enjoined Cal-OSHA from pursuing access by legal process to AIM’s records regarding this case in crisp, clear, unambiguous language:

“Defendants California Department of Industrial Relations, Division of Occupational Safety and Health, Lee Welsh, and their agents and employees, are restrained from compelling or seeking to compel the disclosure of confidential
medical records, HlV test information, and personal identifying information of Plaintiff and other patients of AIM without the specific written authorization of such patients; and

2. Defendant Adult Industry Medical Health Care Foundation is restrained from disclosing confidential medical records, HlV test information.”

Judge Smith further held that: “Because CalOSHA appears to have acted beyond its jurisdiction in subpoenaing this information, and because obtaining the information would
impermissibly infringe upon Plaintiffs and other patients' Constitutional privacy rights, Defendant's argument that an injunction cannot be granted, pursuant to CCP 526(b)(4), to prevent execution of a public statute by a public entity for the
benefit of the public fails.”

This stinging juridical rebuke after weeks of pre-trial maneuvering by Cal-OSHA, including unannounced inspection of of AIM’s Sherman Oaks clinic, the theft of patient release forms from the clinic’s waiting room , and heated courtroom theatrics from Cal-OSHA counsel Amy Martin, slams the door on the agency’s attempt to dragoon AIM into its witch-hunt against adult video producers by overriding state and federal protections of doctor-patient privilege through the use of Cal-OSHA’s highly limited and employment-specific subpoena powers.

It would be difficult to overstate the significance of this victory for the medical confidentiality rights of adult video performers and for AIM’s ability to provide testing, monitoring and treatment for those performers free of unlawful state intrusion. Cal-OSHA made no secret of its intention to use whatever information it might have obtained through this subpoena to establish connections between AIM patients and the producers who engage them and thus to justify the imposition of potentially ruinous fines on those producers on the dubious grounds of engagement in proximity to the detection of sexually transmitted infections.

This was a heavy-handed attempt by a state agency to write new law expansively reinterpreting its mandate with the intent of punishing adult video producers for misfortunes to which those producers causal relationship cannot be medically or legally established. The court found Cal-OSHA’s claims to such authority entirely meritless and its methods in contravention of existing law.

Thus Cal-OSHA has failed in its attempt to use the Adult Video Industry’s key STD testing and monitoring organization as a weapon against that industry.

But however welcome Judge Smith’s wise ruling may be, it by no means eliminates the threat of Cal-OSHA’s ongoing vendetta against our community of performers and producers, and while it protects AIM from further harassment by Cal-OSHA’s agents and employees, it leaves AIM in dire financial straits that threaten the foundation’s ability to operate as it has with such success over the past dozen years. Litigation of this type is catastrophically expensive for a small, non-profit organization supported by voluntary donations and the at-cost services it provides. AIM has no budget for paying attorney’s fees, travel expenses for repeated trips to Oakland, where the case was heard, research expenses and the other financial burdens imposed by having to defend itself, and the industry at large, against the vastly greater resources of state government.

As of now, AIM has unpaid debts arising out of this case in excess of $170,000 dollars, and if those debts are not paid, AIM’s clinics face the very real possibility of having to close its clinic’s doors for good within before the year is out.

If that happens, AIM’s courtroom victory will look a lot like defeat for everyone involved in the making of adult video. Cal-OSHA and other governmental agencies and certain NGOs do not believe in our ability to regulate ourselves and protect the health of our performers. AIM’s extraordinary record since its inception of doing exactly that is the industry’s most compelling argument against the heavy-handed and most probably ineffective regulations these outsiders wish to impose.

The exact number of HIV-positive Adult Industry performers revealed by AIM testing since 2004 totals five people – four performers infected as a result of a single incident in 2004 and one performer in 2009. In this most recent case, AIM put 19 people under quarantine, including performers and non-performers, and this patient’s case was determined by AIM to have occurred outside of the Adult Industry performer population.

Since 2004, new cases of HIV among the general population of Los Angeles County averaged about 3,000 per year.

Our statistics for other STDs, including gonorrhea, Chlamydia and syphilis, show a steady 2.4% incidence in our client population at any given time, considerably lower than the average for sexually active young people with similar demographics. Indeed, when it comes to the risk of disease, the surrounding population represents a far greater danger to our clients than they to it.

Despite sensational, misleading and often outright fabricated claims to the contrary by various public officials and spokespersons for private organizations, adult video production remains remarkably safe from the risk of disease, largely as a result of AIMs vigilance in keeping infected individuals from entering the talent pool and identifying such individuals immediately if they become infected after entering the industry.

Were AIM to cease operation, those safeguards would be gone and claims that adult video production constitutes a clear and present danger to the health of its participants and to the surrounding community would be much more difficult to refute.

In addition to the wisdom of Judge Smith’s finding in favor of the injunction, she sounds a cautionary note none of us can afford to ignore:

“California law erects strong safeguards to prevent the disclosure of HlV-relatedinformation. Health and Safety Code section 120975, in Chapter 7, applies to HIV testing generally and states:
[t]o protect the privacy of individuals who are the subject of blood testing for antibodies to human immunodeficiency virus (HlV), the following shall apply: Except as provided in Section 1603.1 [disclosure to blood banks], 1603.3 [notification of blood donors], 121022 [report to local health officers], no person shall be compelled in any state, county, city, or other local civil, criminal, administrative, legislative, or other proceedings to identify or provide identifying characteristics that would identify any individual who is the subject of a blood test to detect antibodies to HIV.
Section 120980 provides civil penalties for persons who negligently disclose, and criminal penalties for persons who willfully disclose, the results of an HIV test.

Testing is anonymous and, in the absence of a consent to disclosure, results cannot be disclosed to anyone other than the person tested.”

In other words, absent AIM’s voluntary compliance testing program, producers would enjoy no legal right to require HIV testing of performers to insist on the disclosure of any performer’s HIV status. Furthermore, under state anti-discrimination laws, producers could not legally bar performers whose HIV test results are unknown, or even those who are HIV-positive, from performing.

Such is the hellish legal limbo into which this business would be cast if AIM were to shutter its clinics and the 98% compliance with AIM’s voluntary testing program we now enjoy to disappear in the absence of any legally feasible alternative.

AIM has saved this industry from such a calamity through its services for over a decade. Is it too much to ask that the industry in turn martial its financial resources to the utmost to save AIM in return?

We have secured an important victory in one battle. A long campaign lies ahead. The time to demonstrate our collective determination to see that campaign through is now.


Meanwhile, as AIM struggles to keep its doors open, the swat on the nose Cal-OSHA got from Judge Smith hasn't deterred them from their campaign to drive the lawful porn industry out of California. They have now begun sending inspectors to sets based on lists of filming permits and going over studios and locatioins with a magnifying glass. If they find a loose extension cord or a ladder where it shouldn't be or an improperly mounted fire extinguisher, the inspectors are writing citations on the spot. They're also writing citations on the blood-borne parthogens standards for healtchare facilities, even those said standards have not yet been establishes as applicable to the porn industry. One company was recently cited because a production assitant picked up a used towel without wearing gloves. They've even been inspecting offices where no production goes on in search of minute violations.

If the infractions are small, or even non-existent, the penalties are draconian. The minimum fines start around $15,000 per citation. As you can imagine, it doesn't take many small transgresssions to put a struggling company underwater.

Meanwhile, the LAPD, in the wake of Michael Weinstein and Shelley Lubben putting on their dog-and-pony show for The Board of Supervisors, has formed a special squad to roam the city in search of non-permitted shooting (looking for grip trucks in driveways, etc.) and shutting those shoots down.

All of this comes at a time when production is the lowest it's been in 15 years and talent and crews are struggling to pay their rents.

Meanwhile, both the state, county and city governments are deeply in debt and the most basic services are being drastically cut back. Farm workers are dying from pesticide exposure in the fields of The Central Valley, ER patients are bleeding out in the corridors of county hospitals because there aren't enough personnel to treat them and gang violence is resurgent all over the city.

Yet these taxpayer-funded agencies and organizations continue to find time and money to snoop on porn sets from which no complaints, in a supposedly complaint-driven inspection process, have been made.

This is cruel madness sponsored by a handful of fanatical bureaucrats bent on destroying an industry that pays its taxes, obeys the law and keeps its business very much out of everyone else's way.

And if anyone actually thinks this arises out of something having to do with protecting the health or welfare of performers or others engaged in the making of sexually explicit images needs to be reminded of this little gem of wisdom from Dr. Peter Kerndt of L.A. County Health in his monograph for The Public Library of Science:

"The portrayal of unsafe sex in adult films may also influence viewer behavior. In the same way that images of smoking in films romanticize tobacco use, viewers of these adult films may idealize unprotected sex [16]. The increasingly high-risk sexual behavior viewed by large audiences on television and the Internet could decrease condom use. Requiring condoms may influence viewers to see them as normative or even sexually appealing, and devalue unsafe sex. With the growing accessibility of adult film to mainstream America, portrayals of condom use onscreen could increase condom use among viewers, thereby promoting public health."

But of course, none of this is about content or First Amendment-related concerns. Nope. This is all being done from tender concern for those whose lives are directly impacted.

And what is Dr. Kerndt's long-term objective?

"Lacking the will or ability to regulate itself, the adult film industry needs state and federal legislation to enforce health and safety standards for adult film performers. Local officials lack the authority to impose fines and Cal/OSHA's monitoring and enforcement capability is limited. Short of legislation mandating performer protection, restricting distribution of adult movies to condom-only films may be the one way to have an impact on the industry. If there were organized and truly effective advocacy for performers, then large hotel chains, video retailers, and cable networks could be pressured to purchase adult films under a condom-only “seal of approval.” Alternatively and more effectively, legislation could require that the Custodian of Records (already required under Federal law) maintain documentation of screening tests and condom usage in a film's production. Distribution could be restricted to those films produced pursuant to the standard prior to any sale to cable companies or hotel chains, over the Internet, or in other markets."

That's the agenda, as set by the Number One instigator of this whole situation, and it's working.

The chilling effect has set in. Given my outspoken criticisms of these people and institutions, I have no doubt that I'm high on their hit list. The studio Nina and I share is a couple of miles from all their offices.

Until these matters are resolved, I wouldn't even think of shooting so much as a family portrait here. I'm done in video production until the anti-porn pogrom is either halted by official intervention or, quite possibly, forever if these cranks succeed in forcing their personal crusades down all our throats.

Though we won a victory last week of no small importance, I can assure you no champagne will be drunk here tonight.

More to say on what happens when porn is stripped of legal protections and driven underground and/or out of state. It won't be a pretty read.

And for those who don't think what happens here matters all that much to freedom of sexual expression elsewhere, ponder this: if a handful of motivated bureaucrats can inflict this kind of damage in a state where the porn industry has functioned without major interference for three decades, imagine what can happen in places with no such history and no established precedent for legal operation.

Without laying a glove on Miller v. California, it might very well be possible to make porn production illegal everywhere in the U.S. through the abuse of regulatory procedures. If we lose that fight here, we're unlikely to win it elsewhere.

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