Monday, August 19, 2013

Measure B, The Opening Battle Resolved: Still Standing, But Not Quite So Strong

Well, the first of what will be many battles over Measure B, the Los Angeles County condom mandate law passed by referendum last year, has been resolved....to a stalemate.

Last Friday, US District Judge Dean Pregerson made his long awaited ruling on the preliminary motions on the lawsuit attempt by plantiffs VIVID Entertainment, Kayden Kross, and Logan Pierce, and by the AIDS Healthcare Foundation (acting as defendants on behalf of the county) to either throw out the law as unconstitutional or dismiss the case altogether.

In essence, Judge Pregerson denied them both: rejecting VIVID's appeal by essentially upholding the basic essence of Measure B, but also rejecting AHF by striking down some significant chunks of the law.

A few media reports (such as this one from the Associated Press) mistakenly reported that Measure B had been fully upheld and that the condom mandate was cleared in its entirity, and that was the spin that the AHF decided to place in their usual propaganda press releases. While it is true that Pregerson's ruling did generally support the concept in general of the condom mandate, it did NOT by any means give it a free pass, nor did it totally resolve the issue of whether the referendum could still be striken down on other principles following a full hearing.

And indeed, the portions that were struck down in this preliminary ruling could have a decisive impact on whether the law can be fully and effectively enforced or funded.

For starters, here's Judge Pregerson's initial ruling dismissing VIVID's attempt for an immediate injunction against Measure B (all snippage courtesy of this XBiz.com article):

“After reviewing [the AHF’s] motion to dismiss, the court grants dismissal of [Vivid’s] claim that ballot initiatives cannot, as a matter of law, implicate First Amendment rights, that state law preempts Measure B and that Measure B violates [Vivid’s] due process rights with the exception of [Vivid’s Fourth Amendment claim over search and seizure],” Pregerson ruled Friday.
Keep in mind that VIVID and the other plantiffs had fought to keep AHF out of the trial due to the fact that since they were a third party in this case and not a direct enforcer of Measure B like Los Angeles County would be, they had no legal standing to be in the case as a defendant. Judge Pregerson rejected that motion last June, saying that AHF had perfect legal standing to defend the law since they were the ones to originally sponsor and shepherd the law through the LA County legal and political system. The plantiffs here had attempted to cite the recent US Supreme Court decision on the statewide Proposition 8 initiative banning same-sex marriages, in which the pro-Prop 8 groups were denied legal standing to pursue defense of their favored law through the Federal court system.

For the most part, it seems that Pregerson was pursuing the traditional precedent that ballot initiatives approved by the public outweigh individual concerns about due process and First Amendment protections, and that Measure B was justified under the objective of protecting the public in a "direct and material" way against disease.

Problem is, what "seems' doesn't necessarily turn out...and Pregerson's "howevers" open up some gaping holes which could potentially blow the entire condom mandate law apart, or at least make it effectively worthless to enforce.

Here's how the judge rejects AHF's motion to throw out VIVID's case entirely:

But Pregerson said that Vivid has standing in the case and that “in light of the potential First Amendment concerns that Measure B implicates, the costs and consequences of complying with Measure B, and the county’s expressed intent to enforce Measure B, [Vivid and co-plaintiffs] have standing to challenge it.”

The federal judge further ruled that the AHF’s motion to dismiss Vivid’s First Amendment claim is denied, saying that “not all conduct receives First Amendment protection; only expressive conduct is considered speech and implicates the First Amendment.”

“Presently at issue is whether engaging in sexual intercourse for the purpose of making a commercial adult film receives First Amendment protections. The court is aware of no case that has analyzed this issue,” Pregerson ruled.

“However, given the multitude of cases that have analyzed restrictions on adult entertainment under the First Amendment, this court concludes that sexual intercourse engaged in for the purpose of creating commercial adult films is expressive conduct, is therefore speech, and therefore any restriction on this expressive conduct requires First Amendment scrutiny.
 In short, it's still possible that Measure B could ultimately be rendered unconstitutional on grounds of violating porn perfomers' free speech rights, and the burden of proof lies with AHF to prove otherwise. Pregerson continues:

“Measure B’s stated purpose is to minimize the spread of sexually transmitted infections resulting from the production of adult films in Los Angeles. Because this purpose focuses on the secondary effects of unprotected speech, rather than the message the speech conveys, it will be reviewed under intermediate scrutiny.

“Under intermediate scrutiny narrow tailoring, Interveners must demonstrate that the recited harms’ to the substantial governmental interest are real, not merely conjectural, and that the regulation will in fact alleviate those harms in a direct and material way.’

“While an ordinance is not invalid simply because there is some imaginable alternative that might be less burdensome on speech, the Interveners must prove that the statute does not burden substantially more speech than is necessary to further the government’s legitimate interests.”
Contrary to the reports of the Associated Press, and the propaganda of AHF, that has yet to be ruled on until a full trial has proceeded. While Judge Pregerson may yet rule as such, he simply hasn't done so as of yet...so those victory laps are way premature.

Equally important are the areas where Judge Pregerson did invalidate as unconstitutional some of Measure B's main enforcement tools; such as, the County's power to revoke and/or suspend the permits required for adult productions to shoot condomized scenes. Here's how the judge yanked them out as unconstitutional:

“[Vivid focuses] on the procedural safeguards relating to revoking Measure B permits,” Pregerson said. “Prior restraints that target adult entertainment, as Measure B does, must provide the following procedural safeguards: ‘The licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained, and there must be the possibility of prompt judicial review in the event that the license is erroneously denied.’

“These provisions of Measure B are, thus, unconstitutional because they provide for suspensions and revocations before a judicial determination,” he ruled.
In other words, you had damn well better have a warrant in your hand before you can close down a shoot for noncompliance with the condom mandate, and those who are legally busted have a right to a hearing before a court of law to defend themselves and their permits. And, they can continue to shoot scenes while their cases are litigated, too.

And then, there is the nature of the permits themselves:

“Additionally, government officials cannot have unbridled discretion over permits that implicate First Amendment activity. Here, in order to receive and keep a permit, the following is required: pay for the permit, complete an application, conduct blood-borne pathogen training, post the permit on the worksite and use condoms during anal and vaginal sex. These criteria are clear and do not leave much, if any, room for discretion.”

Pregerson said that the provisions are too broad and not limited to Measure B’s requirements, and that it applies to conditions “reasonably suspected” to be “suspected of causing” the transmission of unnamed diseases.
Remember that Measure B would require that porn producers acquire and purchase TWO permits: one for the actual shooting of the scenes (via FilmLA), and another from LA County Health Department requiring the shoot comply with the Cal-OSHA code standard for "bloodborne pathogen" prevention (that's the requirment that calls for PPE/glove/goggle/apron/face shield protection) AND also require condom use for all anal/vaginal sexual action.

(The actual proposed Cal/OSHA standard, by rule, would also forbid any skin contact with "internal fluids" that could potentially spread STI's as well....meaning that even facials and body shots could be forbidden as well. That would leave condomized internal shots -- anal, oral, or vaginal, with condoms -- as the only permissible means of closing sex scenes. Oral sex would probably still be allowed...but remember that Cal/OSHA wanted to require preapproval through stringent testing and Hepatitis B treatment before each individual oral sex scene...or the use of condoms and/or dental dams.)

Judge Pregerson's ruling here would seem to invalidate the attempt to impose these "bloodborne pathogen" standards on porn shoots. That's not a bad thing, since these standards were created for sites where the risk of bloodborne pathogen infection are far greater than mere people engaging in sex.

Even the acquisition of said permits was modified by Pregerson's initial ruling, which declared that while LA County could still require permits and impose the condom mandate based upon those permits, they could not charge fees for those permits unless they could prove that they were "revenue neutral", meaning that the fees paid only for what was needed to enforce the mandate. That in and of itself is big in that LA County had been depending on milking the porn studios in thousands of dollars in order to fund the enforcement of the mandate, rather than tapping into their own scarce funds. With that resource denied, it makes enforcement a much harder option for LA County. On the other hand, it makes it much more likely that AHF would simply bring their fat wallets in to enforce the law...which might explain why they are so eager to detach the City of Los Angeles from the LA County system to rule as their own personal fiefdom.

As far as VIVID's claims of violations of due process and prior restraints went, Judge Pregerson did not dismiss them off hand, and even ruled in their favor in one aspect:

As for due process claims, Pregerson weighed in on Vivid’s claim that Measure B authorizes an unconstitutional system of warrantless searches and seizures. He denied dismissal of Vivid’s claims.

“Given that adult filming could occur almost anywhere, Measure B would seem to authorize a health officer to enter and search any part of a private home in the middle of the night, because the suspects violations are occurring,” Pregerson ruled. “This is unconstitutional because it is akin to a general warrant.”

Pregerson said that there were some remaining Vivid claims over Measure B that are likely to succeed on their merits: the fees provision and the administrative search provision, as well as others.

“The fees provision and the prior restraint provision concerning Measure B’s broad revocation policy (i.e. that a revoked permit means a producer cannot work on any adult films, instead of simply the offending film) are likely to succeed on the merits because [the AHF has] offered no evidence that these provisions are narrowly tailored,” Pregerson said.

“Once a plaintiff shows that a constitutional rights claim is likely to succeed, the remaining preliminary injunction factors weigh in favor of granting an injunction,” he said in the ruling.”
Nevertheless, in his summation, Pregerson seemed to comfort the defendants (meaning AHF) in recounting that Measure B, while weakened somewhat (and probably more than many can see), is still the law in Los Angeles County:

“The court must decide whether Measure B remains 'operational' without the offending language,” he said. “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 ….”

“While administrative searches cannot occur, nothing prevents law enforcement from obtaining a warrant to enforce Measure B,” he ruled. “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.”
Michael Fattorosi, long time legal attorney representing adult industry interests and the owner of the AdultBizLaw blog, has opined that this decision makes Measure B much more unenforceable because LA County simply won't have the manpower or the funding necessary to effectively monitor and raid every adult shoot or obtain enough legal warrants for their raids or even have the funding for all the adjudication required to resolve fines or criminal charges.

That probably won't stop the champagne bubbles from popping over at AHF HQ, or the BusinessWire-created press releases crowing their "victory". (Nor will the disappointment of the plaintiffs, who immediately promised an appeal of Pregerson's decision to a higher court; VIVID CEO Steve Hirsch sad as much in a statement following the ruling.)

But let it be known that this is not the end, or even the beginning of the end....just the end of the beginning of what may become a legal rumble that could decide the fate of the adult industry in Los Angeles County, if not the state of California.

And as always, we here at BPPA will keep you informed of every turn of the screw.

Wednesday, August 14, 2013

Let's Play Porn Scare Whack-a-Mole!! Clover Finally Gets Cleared; Lisa Ann Goes SuperSleuth And Defuses Another Bomb

One thing about the porn industry....never a dull moment. One scandal gets defused; another one rises up from another hole. (No pun.)

This weekend, not one but TWO potentially dangerous situations that could have spelled disaster emerged and were diffused, but not before the usual suspects and peanut gallery shouters got in their licks. Fortunately, so far, no actual injuries or casualties, but there's been more than enough flak thrown to muddle up and confuse people who might be following....so, for your viewing pleasure and as a public service, we will try our best to clear things up on both fronts.

First, we have the Great Syphilis Scare, Part Deux...the one where both porn blogger/gadfly Mike South and the AIDS Healthcare Foundation were all a gaga over the potential propaganda gains when a performer was reported to have tested "positive" for syphilis. Unfortunately for them (and fortunately for the rest of us), the tests turned out to be more "inconclusive", and follow up tests ultimately cleared the performer, named Clover. Today, both the porn talent agency group LATATA and the Free Speech Coalition's APHSS testing system officially announced that Clover had been cleared to perform again, and that all was well that ended well. Some questions may remain about how the tests turned up "inconclusive" to begin with, though there is the possibility that the cause was the hypersensitivity of the TrepSure test used by the industry for their syphilis tests. But, in any case, we can close the book on this one.

The second sitch, on the other hand, is still an ongoing project, though it too managed to resolve itself before anything dangerous happened. What makes this story interesting is that it took the actions of a performer icon going rogue on her own to resolve the potential crisis.

And when that performer is none other than Lisa Ann (aka Sarah Palin's Worst Nightmare), it kind of turns heads and raises eyebrows.

This isn't the first rodeo for Lisa Ann, either, when it comes to independent calling out. Remember a while back that she was the one to bust the Internet radio show Pornstar Babylon when she caught original Syphilis Scare Dude Mr. Marcus doing the live dirty on Jessica Bangkok's show, and promptly raised Twitter hell. When the dust settled, Bangkok (along with Debi Diamond and Christy Canyon) was pink slipped, and Manwin was forced to enforce their "NO sex on radio" code.

During the original syphilis scare of last year, LA was also one of the strongest critics of the original plan of protection devised by APHSS in the midst of the panic, requiring all performers to undergo treatment through taking a series of vaccine shots. Her objection was that those who were not infected should not have to risk the aftereffects of taking unnecessary treatments that could potentially backfire.

Let's just say that Lisa Ann is not known for being quiet about things she does not like. And she will use her power to call out those she thinks are threats to the industry.

And last Sunday night, on her Twitter live stream (@TheRealLisaAnn) she went off long and strong. I'll just let the full text of her tweetage speak for itself.

These are all cut-and-pasted snapshots from LA's Twitter page; due to the extended length I had to break them down into segments. Plus, you have to read from the bottom tweet up for each segment.



Again, please read from the bottom up for the correct sequencing.



Segment #3:


Segment #4:

The website Lisa Ann is talking about is the APHSS "whitelist" page of performers that are cleared to perform pursuant to testing by the two major testing centers, Talent Testing Services and Cutting Edge Testing.


I believe that the picture is becoming a bit clearer as to what LA is implying: an agent is basically allowing a performer who potentially might be spreading a pretty nasty infection to game the system and continue performing in spite of a positive test kicking him out of the "whitelist". 

But, wait...it soon gets real. As in....really REAL.



That is what you call proactive intervention.


"Free Speech" = Free Speech Coalition, for those of you playing at home.

And the outing of LA Direct Models may ring some bells, because Lisa Ann has had a bit of a rivalry with that agency -- in particular, it's chief boss Derek Hay -- going back to the days when LA had her own autonomous talent agency, Lisa Ann Talent Management.


Here's how Lisa Ann concluded her Twitter bomb:


But, she didn't stop there....she then went over to XBiz.com and busted out a few more details about the potentially tainted performer and the testing debacle. Quoting from their article posted on Monday:

Lisa Ann said she found out on Wednesday, Aug. 7 that she was booked to work with the performer on Sunday, Aug. 11. She immediately requested the performer's test in advance of the shoot, which is part of her routine. She said she has worked with the performer before but not for about three years.

She said the performer sent her a photo copy of his test electronically and she noticed it was from LabCorp. Tests from somewhere other than Cutting Edge Testing (CET) or Talent Testing Services (TTS) are not typical, Lisa Ann said.

She said that because it was unusual that the performer presented her with a test from LabCorp, she was compelled to call both CET and TTS to ask if the performer was available to work. "I got a verbal from both sides that he is 'unavailable' to work," she said.

Then she logged into the Free Speech Coalition's Adult Performer Health and Safety Services (APHSS) database to check the performer's status, and his status was listed as "unavailable."

Lisa Ann said that LabCorp does not test for Hepatitis unless it is requested, and that CET and TTS just temporarily began testing for Hepatitis B and C in June. Neither provide the Hepatitis test now, unless it is requested and an additional fee is paid for it.
She said she believes the performer is positive for some type of Hepatitis because "it's process of elimination, and plus other people knew about it when I talked to them."

But the performer still had been planning to work with her on Sunday had she not canceled the scene herself on Thursday, according to Lisa Ann. She also claimed the week before last that the performer in question did "two gangbang scenes and an orgy."

For their part, the FSC, through their CEO, Diane Duke, verified LA's story, with the additional caveat that the APHSS system of testing relies on the trust and good faith of performers and agents and companies cooperating with the protocols to ensure prompt action.

Duke continued, “I don’t have proof of what Lisa Ann had suggested, so I can’t speak to knowledge that that has happened. But what I can say is performers or anybody who has been marked 'unavailable' on our database from cause should not be performing. And anybody who supports that person performing, that’s unacceptable.”

Lisa Ann said she has "had some banter" with the performer in question about his tests since she canceled their scene. She told him, "if you don't do something about this, I'm going to the county health department." According to Lisa Ann, he told her, "I don't know what to say."

Lisa Ann would not name the production company that booked her with him.

"The systems we have are working, but it's your responsibility as talent to call in and get a verbal or to log into APHSS's database," she said.

Duke echoed Lisa Ann's point.

“Producers and directors and performers have to use this system in order for it to work. Producers aren’t even paying for it. There is absolutely no reason why people should not be using this system," Duke said. “We can only hold the industry so accountable. The industry has to be responsible and hold each other accountable. We’re providing the service, we’re providing the doctors and approved testing protocols and testing facilities.” 

"People trust us," Lisa Ann continued. "They don't think we will bring them an irrevelant test."
Also, later that evening, XBiz posted an addedum containing the response from Derek Hay of LA Direct Models, denying Lisa Ann's charges and citing the inconsistency of the testing system.

Derek Hay, owner of LA Direct Models, which represents the performer in question, told XBIZ Monday, “The adult industry does not currently require someone to demonstrate negative test results for Hepatitis in order for a performer to be cleared to work. The current demand is for an HIV test by Aptima. Gonorrhea, chlamydia, and syphilis is provided by Trep Sure and RPR tests by TTS, and only Trep Sure by CET.

“As far as the allegation that Lisa Ann has made I cannot comment other than to say I have no evidence that supports her allegation and any information that we have at the agency shows him testing cleared for work. And through all of the last three to four months when what must be the time period that Lisa Ann alleges a positive test result, we have no record or information that he has not been cleared for work. Based on her public allegation today we are doing some investigative work to review if there is any truth to her allegation, but have nothing of substance from which to investigate.

"I will first be recommending to the actor that he be transparent and truthful at all times and likely that means test at TTS as soon as possible to dispel any doubt."

Hay also noted that only “a minority” of production studios currently utilize the APHSS database.

“The majority of studios set their own testing policy which always includes the four or five tests previously mentioned showing negative results. And the period of time from date collected to the date the test expires varies between those studios. Some are 14 days, some 15 days, some 28 and some are 30.”

And then the next day, LATATA got into the game with their own statement mirroring that of Hay and also announcing that Talent Testing would add Hepatitis C screenings to their regular testing panel. (Cutting Edge had been offering Hep C as a supplemental screening since June). In that statement, LATATA founding member and ATMLA founder Shy Love also publically denied Lisa Ann's claims of a positive test, citing that all the tests they had access to had come out negative.

The most damning statement of all, though, is that no studio has seen fit to include Hepatitis B or C testing as a reason for blacklisting a performer, even though the performer cited was in fact taken off the "whitelist" and flagged as "unavailable". That has been a sore spot with many performers, and one of the major propaganda points of groups like the AIDS Healthcare Foundation in their crusade to impose mandatory condom usage for all performers.

The irony of it all is that both CET and TTS had integrated a program during the month of June adding Hep B/C screenings to their panels at no additional charge. On Monday, TTS announced that they would revive the program through the month of August as a precautionary measure.

And as for Lisa Ann?? Her response to the antics of LATATA and LA Direct was to the effect of: "Not impressed."  (Also reposted at Mike South's blog)

 Well I TOO can release an official statement.. and here goes…


 Sure LATATA and anyone else can imply that I did not have the information I needed to make such claims, but can they prove me wrong? If so, I would be thrilled. Thrilled to know no one in the industry I love so much is sick. That is not what anyone wants for anyone that is here.


 Too further address the fact that I am not privy to the information of someone elses health records, you are correct. But I am privy to common sense, I am also wiling to apply that common sense to satisfy my own research and to protect myself and the health and well being of MY business.

 It was not difficult for me after hearing some talk in the business and then getting to actually see the outside test come in to my phone, i knew I got asked to work with [name of possibly infected performer redacted] for a reason. A reason much larger than a scene. The reason was to do my homework, which I did. My first phone call was to Derek at LA Direct Models, I asked him some important questions. First question was “Derek, do you let your talent work with Talent who have tests that are NOT from CET or TTS” . he said “NO”. I then asked why he would have one of the Male Talent that he represents through his agency, that is active on his site, testing at Lab Corp. Derek tried to deny it but then he went on to mention there was an issue about it on another set, but he wasn’t sure what it was about …


NOW I CALL BULLSHIT.. Derek knows everything that goes on on every set because thats how he watches his money. So Please don’t try to pull that with me. I have been in the business longer than Derek, and by the looks of how this is playing out, I will be in the business a lot longer than him too.


 Rightfully so. For those of you who read the Statement from Derek on XBIZ, he states the industry does NOT require a clean Hep test in order to shoot.


WELL HELLO Derek, thank you for admitting you knew about this. You came clean in your own, round about way. You are guilty, but since the Industry doesn’t require a clean HEP test, as you said, you will keep [redacted] on your site as available to work in sex scenes.


 What I do want and need is, for those who are more worried about money than  the health of the industry to get shut down. If you are an agent and you are allowing you talent to go to set with a Test from a Center outside of the parameters of the Testing Centers we all go to, well then you are wrong, and more so, you need to be shut down. If you are trying to say it is ok to work with a test that proves you have an illness, but you state that the industry doesn’t require you to be clean of HEP, well you are a sicker mother fucker than even i ever imagined. Like being the largest illegal PIMP and pushing your girls to escort and be in unsafe situations off set. Now you want us all to be unsafe on set as well.


 Don’t anyone forget that I worked at LA Direct Models for a year. I learned a LOT that year. I have enough information to do what ever i need. But that would do nothing for me.

Protecting this business does EVERYTHING for me.
Thank you,

XO LA
Obviously, we will follow this as it breaks.

[Addedum: The statement by Lisa Ann posted at Mike South's blog reveals the name of the potentially infected performer; I have decided to redact his identity here pursuant to standard BPPA policy.]





Friday, August 9, 2013

Why Mike South Should Be Treated As The Alex Jones Of Porn Gossipers: The Latest Syphilis False Positive "Scare"

You may not have noticed it this week, but the adult industry just escaped yet another nuke in the form of another syphilis "outbreak".

A performer named Clover whom originally tested "inconclusive" for syphilis last week and was temporarily quarantined as a precaution, was ultimately retested through the services of the Free Speech Coalition's APHSS protocols, and found to be clean.

But this post is less about how the system of performer testing once again worked to avoid a major disaster. This is about how certain people, in particular one person, took it upon himself to invent and inflame the controversy to begin with, for no reason other than to satisfy his own long term vendettas and myopias.

That's right, Mike South, I'm looking directly at YOU.

(And BTW, this is Anthony talking, not Ernest, Nina, or anyone else. This rant is mine and mine alone.)

When you and your "detailed sources" decided to dive head first into that empty pool and report initially on the "NEW SYPHILIS OUTBREAK!!!!!!!!!!!", did it ever even bother you to even ask the actual performers involved? Or, to defer your victory celebrations until actual confirmation of the positive test had been verified by medical professionals? Oh, wait...who needs verification when you can just fling more of your shit at the FSC and APHSS, like you have been doing for, I don't know, the past 10 - 20 years?? It's not as if every charge that you have flung at them has been proven dead WRONG, right, Mike?

Does it ever even bother you, Mr. South, that the only other sources parroting your squawking about a "porn syphilis epidemic" were Monica Foster, Shelley Lubben, and the AIDS Healthcare Foundation?? Considering the level of credibility these three actors have when it comes to performer testing, let alone the not so hidden agendas against the industry they all pursue, it probably would have been a good idea to slow your road a tad and at least wait until the tests came out?

Oh, and on the subject of AHF....boy, were they really quick to use you as a convenient foil to fire off TWO press releases in less than 24 hours, in their attempt to milk the panic for all its worth. What better way to prove to the masses that this dirty porn industry just can't be trusted to protect their performers, and that AHF through their newly created City of LA Health Department should run to the rescue with boxes of condoms to save the day!!

Oh, I know, LA County DPH is the main reg agency, and they have to be the ones to investigate any porn outbreak once they get a confirmed and verified positive test....which they never got. But, hey, why let such irrelevancies as protocol and legality get in the way of such a wonderful crusade? Tens of performers are being INFECTED even as I type this!!! WE MUST ACT NOW!!! Perhaps that should have been the red flag for you, Mr. South, to stop for at least a millisecond? Oh, no, we can't do that, not when we can bury FSC and APHSS for good and the final coup of AHF and Cal-OSHA and Rob Black and Gail Dines can be completed and bareback porn banished from the face of the earth!!

So now that the entire "outbreak" scam has unraveled quicker than a dandelion in an April wind, Mike, do you decide to...be a man about it and admit you were wrong and that Clover deserves an apology, and that the system developed by FSC/APHSS actually WORKED?

Ahhhh....nope, you decide to spin it as part of your continuing vendetta against FSC and APHSS, splitting them and Manwin (your other pet pinata) off against LATATA and Clover. Sorry, Mike, but it doesn't sell, since APHSS does indeed control the testing, and since Talent Testing and Cutting Edge Testing have buried the hatchet and actually coordinated with the agents to make the testing work.

Of course, the key element in all this was Clover not panicking and trusting his instincts that he was clean all along and that the '"inconclusive" tests were really false positives based on the strength and intensity of the TrepSure arrays used for the syphilis testing. Imagine if Clover had only relied on the propaganda you and AHF were swilling out, and assumed that he was indeed  "positive" for syphilis, and then attempted to pull the same act that Mr. Marcus did last year. Oh, what am I saying, you STILL would have convicted APHSS and FSC of spreading the virus...smearing them is simply part of your porn DNA by now.

Since Clover has now been cleared, all of this is now a moot point....but I still find it fascinating how you attempted to pull other performers into this through indicting Manwin for the two female performers whom had not been reached by LATATA by last Monday (but were ultimately reached by FSC later).

And please, Mike, spare us your attempt to split the difference regarding your support for AHF and the condom mandate. We know you have supported their efforts openly for the past 2 years through attacking their critics, so don't sell us the "unattached" line. It makes your alliance with Rob Black and Shelley Lubben (and possibly Gail Dines) that much more unseemly.

Now, I am NOT an insider who gets any sources from anyone; I write from the perspective of a fan and an advocate of consensual adult porn; so that makes me as much an outsider as anyone. But, I do have eyes and ears, and I can read; and as such I can see for myself who's being real and who's pushing BS and rumors. I can be as critical of the FSC as the next guy, but in this case of this latest "scare", they acted immediately and promptly to do their job, and thankfully everyone came out OK.

Well...everyone except those who invested themselves in priming the pump of fear in order to soothe their ingrown prejudices and stroke their old vendettas. For those people -- yourself included, Mike South -- there is not a pit in Hell deep enough or hot enough for you to melt in.

Oh..and Julie Meadows and Kayden Kross gives their best regards.

Saturday, August 3, 2013

Gail Dines Raises The Bar Of Mount St. BS To New Heights: The #2257 Issue

[Originally posted at Anthony's Red Garter Club blog]

[Updated....scroll to bottom.] 

Did you really, really think that Gail Dines would not parlay her recent alliance with the US Department of Justice into more publicity for her antiporn efforts? And, did you really, really think that her "friends" over at CounterPunch would not aid and abet her efforts by giving her their bandwidth to spout her crackpot junk science about porn and "corporate profiteering"?

WRONG...and WRONG.

For those of you not in the know...Gail was summoned by the US DoJ to be one of their key witnesses in defense of the 2257/2257A regulations, which require porn performers and producers to provide federal authorities with detailed information about performers in order to verify that they are of legal age to shoot sexually explicit material. Last week, federal district Judge Michael Baylson ruled that the regulations were mostly legal and justified, throwing out a challenge by a group of performers and producers through a lawsuit that had been filed by the Free Speech Coalition, one of the main legal support groups for the adult industry. (An appeal to the Third US Appelate Court is enniment.)

As we all know, Gail Dines is not known to be silent when things go her way....and yesterday [8/1] she used her usual perch over at CounterPunch to strut and squawk about the ruling and how it marks a significant victory against the "corporate lobbying" efforts of "Porn, Inc."

Basically, it's the typical Dines boilerplate...except with the volume of bullshit jacked up to, shall we say, a thousand.

Hate to do this -- AGAIN -- but her latest essay deserves another run through the Great Red Garter Fisk Machine.

Before we begin, though...you will notice that for this essay, Gail saw fit to include her husband, Daniel Levy, in this broadside. That's new for her, since she mostly owns her broadsides by herself (when Robert Jensen's not sharing the byline). He's credited in the CP piece as an "expert consultant", and the director for an org called "Center For Sustainable Enterprises And Regional Competitiveness", based at the Univ. of Massachusetts-Boston. Wait, screech, hold up a damn minute...isn't Gail supposed to be such a Marxist that she rejects corporate enterprise as tainted by the "patriarchy"/"porniarchy"? But, since this is CounterPunch, I guess for this case that including her hubby would upgrade her "leftist" anticorporate cred a tad.

So much for the prelims...here we go.

Corporate lobbyists suffered a major defeat recently when Philadelphia-based US District Court Judge Michael Baylson upheld federal regulation 2257, which requires pornography producers to maintain documentation that performers are at least 18 years old. The Free Speech Coalition (FSC), the porn industry lobbying group, had challenged 2257 on First Amendment grounds claiming that the law is overly burdensome and chills free speech.

This case highlights how porn has become big business, flexing its political muscles to fight regulation it sees as costly with wanton disregard for the consequences. At the same time, like other industries confronting controversial issues, the porn industry has tried to burnish its public image by promoting itself as a good corporate citizen that can be trusted to self-regulate.

Note from the start how Gail totally objectifies (irony in that) the individual performers and producers who launched the lawsuit against 2257 in the first place, reducing them to the level of eunuchs for the Free Speech Coalition, whom has always been elevated in the cracked head of Dines to be the porn equivalent of Monsanto, Goldman Sachs, and Apple. Never mind that even the FSC's lobbying budget wouldn't pay a day's salary of George Zimmerman's lawyers, or that not even the porn performers themselves see the FSC as the sole representative ageny for defending the industry. Most of the legal work is done by independent unattached lawyers to begin with; and since there is no true organization of porn performers or Adult Performers Guild where performers can pool their resources in defense of their profession, much of the legal status of porn is more of a crap shoot based on the local attitudes and the willingness of the authorities to lay off the whip. In short, the FSC will not be comparable to Porn Harms or the Family Research Council, let alone the Business Roundtable or ALEC, anytime soon.

Nowhere is this cynical behavior more blatant than in the case of the porn industry-backed non-profit group Adult Sites Against Child Pornography (ASACP). ASACP was founded in 1996 by the porn industry and claims that it “battles child pornography through its CP Reporting Hotline” and is “dedicated to online child protection.” Yet the same industry has spent many years trying to undo the very regulations that attempt to shield children from being exploited.

The FSC, a non-profit that is “the trade association for the adult entertainment industry,” is actually in bed with the ASACP. Both organizations have similar membership and funding from porn industry players across the value chain from producers to online distributors and webmasters. For example, Manwin, the largest multinational porn conglomerate in the world, was the FSC Benefactor of the Year in 2012 and the only diamond donor to ASACP. XBIZ, a major porn industry association, held a joint fundraiser for FSC and ASACP at its awards ceremony in January 2013 at the Hyatt Regency Century Plaza in Century City. FSC itself is a member of ASACP.

Because, you see, only an antiporn authoritarian like Dines would consider it "cynical" that people who have been legally burned and destroyed by trumped up fake charges of "child pornography" would form an organization dedicated to the reduction of illegal underage exploitation, and even offer their services to aid law enforcement in aggressively tracking and eliminating whatever illegal underage exploitation actually exists. Also, the fact that FSC contributes to ASACP, and that Manwin contributes to both FSC and ASACP, only proves that the industry is pretty deeply concerned with fighting against illegal use of the underaged in sexually explicit media...but why let that truth get in the way of a good slanderous smear?

So....where's the hypocrisy of this? Here's where Gail gets real.

Why is the overturning of 2257 such a priority for the porn industry? To answer this, we need to go back to 2002 when the Free Speech Coalition had its first major victory, in the Ashcroft vs. Free Speech Coalition decision. Arguing that the 1996 Child Pornography Prevention Act -  which prohibited any image that “is, or appears to be, of a minor engaging in sexually explicit conduct” – limited the pornography industry’s free speech, the FSC succeeded in narrowing the law to cover only images of actual minors. The path was cleared for the porn industry to use legal-age performers but make them look much younger.

A great etology of fiction, I'd say. Someone might want to remind Gail that the original challenge to the 1996 act passed by Congress was not only from the FSC, but also from a cacphony of artists, performers, and civil libertarians who shared the FSC's core belief that the original law was woefully overbroad in covering not only actual children, but also "virtual" images which could have been interpreted by some authorities as encompassing "kiddie porn". Also, the original decision by the SCOTUS only struck down the two provisions of the 1996 law that specifically dealt with "virtual" images of "kiddie porn"; it did not challenge any of the existing laws concerning actual exploitation of real underage folk.

But, all that is inmaterial to Gail, since she wants to exploit this bit of successful "corporate lobbying" as a hook to her main thesis as to why porn should be banished....errrrrrrr, why 2257 is still desperately needed to reign in those nasty porn lobbyists.

Following the Ashcroft decision, Internet porn sites featuring young (and very young-looking females) exploded, and the industry realized that it had hit upon a very lucrative market segment. Our research demonstrates that “teen porn” has grown rapidly and is now the largest single genre, whether measured in terms of search term frequency or proportion of web sites. A Google Trends analysis indicates that searches for “Teen Porn” have more than tripled between 2005-2013, and teen porn was the fastest-growing genre over this period. Total searches for teen-related porn reached an estimated 500,000 daily in March 2013, far larger than other genres, representing approximately one-third of total daily searches for pornographic web sites. We also analyzed the content of the three most popular “porntubes,” the portals that serve as gateways to online porn, and found that they contained about 18 million teen-related pages – again, the largest single genre and about one-third of the total content.

Let us ignore for now the research fallacy of using a 1996 SCOTUS decision as a direct cause of events occuring nearly 10-20 years later, and focus on the "teen porn" phenonemon that so disturbs Dines to the point of apoplexy.

First off....hate to break this to you, Gail, but the law states that intent does not matter when it comes to legal adults consuming legal adult porn featuring legally-aged men and women; you can dress a 50 year old man in Pampers and that will still not make him 17 years old. The fact that some adult women may "look" like they are underage matters about as much as the crackpot theory that since some performers "look" like they are in pain when they are in the state of orgasm in their sex scenes, that proves that they are really being raped and abused.

And this nonsense about "teen porn" being the #1 profit leader for porn?? Really?? You mean that the MILF/Cougar phenonemon, the "Sex Teacher" craze, the Hollywood porn spoof factory, and the rise of the Internet and free amateur porn has no juice whatsoever in driving the profits of adult media??

And also...maybe Gail would benefit from actually analyzing who actually does the searching for "teen porn", since she would probably find that the overwhelming majority of the searchees are...surprise!!!....TEEN ADULT BOYS who get off on sexy girls of their similar age group. Not Lolita seeking dirty old men, Gail...young adult boys who probably want girls who don't fit into the old porny stereotype of fake boobs, fake hair, and fully shaven hoohas.

Naaaahhhhh....Gail's right; it's just evil men seeking their potential rape and abuse targets to jerk off to in their basement dungeons.

And speaking of stereotyping....get a load of how Dines describes "How Porn Uses 'Underaged Girls' To Pander To Pedophiles And Make Lots Of MONEY!!"

The pornographers use a variety of methods to make female performers look much younger than 18. In place of the usually large-breasted, heavily made-up women that populate much of Internet porn, teen porn sites are filled with young-looking females with petite bodies, small breasts, makeup-free faces with hair in braids or pony tails, surrounded by such childhood props as stuffed animals, bed sheets with flowers, and backpacks with cartoon-character motifs. It is not uncommon for the females to wear school uniforms, have braces on their teeth, and knee-high socks as they engage in hardcore sex.

First..."the pornographers", Gail?? You mean, porn producers and performers are of only one mindset, not actual individuals with diversity of sexual desires and tastes? Unlike, say, radical antiporn "feminists"??

But this is the true hilarity of Gail not only jumping the shark (actually, she passed that marker a long time ago with the "porn makes men force women to wax their pubes" smack), but now actively riding the EF6 Sharknado. So, if you happen to have a small body and real, small breasts and actively perform in porn, you must be underaged. Right, Professor....I'll forward your concerns to Rebecca Lord and Michelle Lay and Jayla Diamond and Carmen Valentina. If you wear braces or braids or ponytails and perform in porn, then you must also be underaged, too. Is that clear, Dana deArmond?? Melissa Dawson?? I mean, we all know that only pedophiles watch porn where the girls play schoolmates going after the hot teacher, right?? And, of course, we just can't have the pure and innocent Hello Kitty enterprise tainted and corrupted one bit by nasty slutty porn girls getting DP'd or 69'ed while flashing their Kitty nails on cam..amirite??

Even I, one of the staunchest Gail Dines critics this side of Jordan Owen, would not assume that Gail would degenerate this far to think that the only people who consumed porn were either old trenchcoat-wearing wannabe pedophiles or 15-year-old pubescent boys...or that such a thing justified forcing 35 year old porn performers to "show their papers" under threat of heavy fine or jail. But, absolute power can absolutely corrupt.

So, how does all this relate back to Judge Baylson's ruling?? Here's how Dines concludes her "essay":

The age documentation requirements of 2257 represent a key component of a legal struggle to prevent child pornography, especially in an age of fragmented and globalized production. Even though enforcement has been lax and software packages to manage 2257 compliance are available, the industry claims that it’s all too expensive and burdensome. Like the garment industry facing outrage over sweatshops, the porn industry wants to self-police. This “just trust us” approach helps resolve the paradox of the good cop–bad cop strategy of the industry’s twin non-profits, ASACP and FSC. If the industry wants to self-police, it needs to win the public’s trust that it can act with social responsibility AND challenge governmental regulation. But as Judge Baylson ruled, when a powerful industry is willing to do whatever it takes to maximize profits, self policing is not enough.

Once again, Gail attempts to seduce her logic to the CounterPunch audience by comparing the porn industry to "sweatshops"....something she actually attempted to do in her testimony before Judge Baylson intervened against it. And how interesting that Gail quotes the fact that "enforcement has been lax", especially since one of the principal pillars of Baylson's ruling is that porn performers and producers should have nothing to worry about enforcement of 2257, since it hasn't been enforced through inspections since 2008, and no inspections are planned in the future by the DoJ!!
Now, there have been some who have made a case that the approach of the FSC using "excessive and burdensome" regulation would be better served with a broader approach focusing on the potential impact of 2257 on a far broader range of free speech and expression. See here and here.

That debate, though, is irrelevant to what Dines is attempting in her slander of both FSC and ASACP as co-conspirators in keeping the dirty profits of "Porn, Inc." going at the expense of its "victims". As usual, Gail is appropriating Left populist anticorporate rhetoric as a crutch to sell her program of ultimately banning porn off the face of the earth...but if she can't get an outright ban like she favors in Iceland or Ireland, or David Cameron's porn filtering scam in Great Britain (which, BTW, Gail has been notoriously silent on staking a position for or against), then I supposed she's willing to settle for censorship by paperwork asphyxiation via 2257 until her radfem antiporn crusade gets a more stable political footing in the US.

It would be laughable it not for the stakes for freedom of expression here in the United States. And it would be farcical, were it not for "left" journals like CounterPunch enabling the fascist tomfoolery of Gail Dines while denying actual voices within the adult media who are far more worthy of their legacy any voice of rebuttal. It's past time for pro-porn voices from the Left to actively respond to this, before Dines' mountain of bullshit consumes them into irrelevancy.


UPDATE (8-5-13):

Heh...didn't take long for ASACP and the FSC to respond to Dines' smears, didn't it? Just posted today over at XBiz.com:

The Free Speech Coalition and ASACP both have come out in staunch opposition to an article published last week by political news website CounterPunch.com that says that the porn industry has tried to burnish its public image by promoting itself as a good corporate citizen that can be trusted to self-regulate.

The article, written by Gail Dines, who testified for the government in the FSC's challenge over 18 U.S.C. §§ 2257 and 2257(a), and professor David Levy, who chairs the University of Massachusetts' Department of Management and Marketing, focuses on the supposed might of the adult entertainment industry and the behavior by the two trade groups, specifically when it comes to prioritizing efforts to overturn the federal record-keeping law for producers.

[....]

 
Dines' and Levy's CounterPunch article has run afoul with leaders, as well as supporters, of the FSC and ASACP.

ASACP Executive Director Tim Henning told XBIZ that the authors' hit piece has "unfairly characterized" the ASACP, the FSC and the online adult entertainment industry in general.

"Dines’ campaign of misinformation misses the fact that legitimate adult entertainment producers do not object to verifying the age of their performers at the time of production, but in the case of 2257, may have objections over details that are unworkable in the digital era, even if they were suited to yesteryear’s world of print-based publishing," he said.
 
"Disturbingly, Dines considers ASACP to be an example of blatantly cynical behavior, mistakenly tying the association to what she calls efforts 'to undo the very regulations that attempt to shield children from being exploited,'" he said.

"ASACP has never sought to fight regulation, but rather seeks to shape it in realistic and workable ways that serve to protect at-risk youth, without imposing unrealistic burdens on publishers due to legislator’s misunderstanding of today’s digital media ecosystems."

Diane Duke, who leads the FSC as its CEO, echoed Henning's take on contents of the CounterPunch article and said that Dines' "extremism will work in our favor in the long run."

"Gail Dines is, and always has been, anti-adult entertainment," Duke told XBIZ. "We knew going into this trial that Judge Baylson would likely rule against us as he had previously ruled.

"Our goal was to build a solid case for appeal. Dines dismisses the good work of ASACP and the FSC around industry self-regulation in an attempt to support her pro-censorship agenda."

Dines, of course, has been active through the years trying to set an agenda to decrease the "pornification of the culture." The professor of sociology and women's studies at Wheelock College in Boston also is a founding member of Stop Porn Culture and author of Pornland: How Porn Has Hijacked Our Sexuality.

Calling the CounterPunch piece article "biased," Henning noted that the ASACP, formally known as the Association of Sites Advocating Child Protection, is not about providing lip service to stakeholders but about providing concrete solutions that help digital media publishers, institutions and parents work together to keep children out of and away from age-restricted materials.

"[C]ountless consumers view the ASACP logo as a sign that a site does not contain content depicting underage performers, shielding the viewer from inadvertent exposure to this material and providing trust in the product," he said. "This symbol is widely sought out by consumers as a sign of assurance, representing businesses that are committed to doing the right thing when it comes to protecting children."
 I wonder if CounterPunch has some good libel lawyers??