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

This summary is not available. Please click here to view the post.

The Panic Works: Measure B Passes With 55% Of The Vote. The Requiem, The Legal Challenges, And The Future

Well...in spite of the spirited efforts and passionate campaign, in the end the gold made the rules.

The condom initiative known as Measure B was headed for passage with 55 percent of the vote as of this moment, and barring any last second miracles, Michael Weinstein and the AIDS Healthcare Foundation, along with the Los Angeles County Department of Public Health and the California state branch of the Occupational Health and Safety Administration, will get the authority to force condoms and other forms of obtrusive barrier protections onto porn shoots in most of Los Angeles County.

From the reaction of many performers whom have made LA County their home for the past few years, and have depended on the good will of the community for their livelihood, this loss will seem like nothing short of a punch in the crotch, a giant betrayal of a legal tax-paying community of enterpreneurs and workers whose only crime was to make and perform sex videos for their entertainment.

This isn't to say that the issue is settled, of course....I'm betting that the legal battle to overturn Measure B is already being planned, since a similar battle is already in the works to challenge a similar law passed by the City of Los Angeles (which now will be adjusted to mesh with the stronger county ordinance now passed). But, while the industry renders the now painful choice of whether to stay and fight or pick up their stakes and move to newer, less hostile venues, there is still the postgame analysis of how Measure B still passed even with the strong and passionate arguments of opponents, as well as what the diaspora of porn professionals can plan on in the future.

The key element, to say the least, was AHF's money. When you have a budget of well over $100 million, you can afford to buy the loyalty of plenty of people and manipulate the process. The collusion between the LA County Council of Supervisors, CalOSHA, and AHF has been well documented both here and elsewhere, along with the ability to cut TV commercials featuring the two primary protagonists of the last significant HIV scares, Darren James and Derrick Burts, against an opposition that was essentially reduced to Twitter bombs, YouTube videos, and the occasional radio commercial. The latter campaign more than made up in intensity what they lacked in financial resources...and they appeared to have far more effective arguments and facts at their side. The problem was, though, all the facts in the world are useless if the majority of the electorate refuses to listen to them, or are simply overwhelmed by the driving rainstorm of distortions.

The second element was timing. AHF had nearly two to three years to plan and execute their offensive, starting from the vendetta and ultimately successful closing of the Adult Industry Medical Foundation clinic that had been the main STI testing clinic for performers, and then conniving with CalOSHA and LACDPH to promote the "only condoms can save the industry" meme. The industry was either too distracted by their own petty squabbles (Free Speech Coalition vs. certain talent agents; Cutting Edge Testing vs. Talent Testing; Manwin vs. everyone else) or too assuming of their economic weight in Los Angeles County....and by the time the threat was seen and forces assembled, the syphilis scare featuring the misplaced antics of Mr. Marcus siphoned off critical resources and time that could have been used to deflect the attack. (I'm not going to blame Marcus personally, just explaining how that controversy distracted from the main battle.)

But to me, speaking as the outsider here, a significant factor in Measure B's passage was what I see as the main opponents' complete misreading of the base electorate of Los Angeles County, and the assumptions that they would automatically be moved by certain arguments based on libertarian conservative beliefs about "less government" intervention. This is not intended to be an attack on James Lee of the No On Government Waste group or Michael Whiteacre or Sean Tompkins of The Real Porn Wikileaks, whom have been nothing short of supurb and have left everything on the field in the opposition effort. However, I do think that the theme of emphasizing conservative themes of "government intervention" and "attacking legitimate small business" completely missed the nature of appealing to a much more moderate, if not liberal/progressive, electorate, and allowed AHF way too many outs of counter appeals. Not tying the NoOnB effort effectively enough to the larger efforts against the statewide "anti-sex trafficking" initiative Proposition 35 (which also passed last night) was, in my personal opinion, a bad move that would become costly...especially in the wake of the synergy between the slut shaming paternalism of the anti-"sex trafficking" movement and the underlying attitudes of proponents of Measure B.

Both campaigns reflect (for all of Gail Dines' rhetoric against "neoliberalism" as an elitist assault on the majority of women supposedly under attack by the evil Capitalist Male Porn Conspiracy) the actual sexual paternalistic neoliberalism of professional, upwardly mobile celebrities, reinforced with the "expertise" of fly-by-night armchair psychoanalysts cloaked with doctorates and Cosmopolitan atttitudes about the wonderfulness of sexuality..as long as it is conditioned within the proper boundaries of "safety".

For these folk, condoms represent what monogamy used to represent for sexual neoliberals in the 1980's during the HIV pandemic: both a safe zone to experiment sex freely AND a means to impose an only slightly less restrictive sexual ghetto and seperate themselves from the rabble of those evil "promiscuous" out-of-control sluts who "make us look like libertines". It's essentially the same mentality that political neoliberals have had against working class folks whom are outside of their charmed circle, the "dependent" welfare poor, the "shiftless" and "lazy" ghetto Black/Brown male....but set in a more benelovent, paternalistic, loving, lecturing tone than the typical "let them eat shit and die" mentality of the Religious/Tea Party Right.

Bear in mind, of course, that there were supporters of Measure B who were and are genuinely sincere about protecting performers from the scourge of sexually transmitted infections, and whom generally do see the condom mandate as one tool of enhanced protection. I may ultimately disagree with performers like Brittany Andrews and activists like Chi Chi LaRue, two principled activists for mandatory condom usage, but in no way will I disrespect their right to their views and their sincerity in their concerns.

However, the potential impact of this new law (all the legal challenges aside) stands cogent to the fact that there is still a lot of education of the public that needs to be done....and that just because someone isn't a fundamentalist or a radical feminist does NOT mean that they can't be suspectible to the politics and emotions of slut-shaming....even regardless of the general rout of the most virulent forms of misogyny and sex hate last night through the massive political rout delivered for President Barack Obama.

And, just as progressives and the Left now beginning to resurge in power nationally need to be educated by activist sex workers and their consensual clients and fans and consumers on the importance of defending core sexual liberties, so too must porn professionals face the fact that the broader electorate is changing and being transformed to be more diverse and more liberal/progressive, even more radical. Appealing merely to Whites with money and libertarian conservative appeals simply isn't going to cut it much longer with a younger, racially diverse, and politically more astute coalition of fans and consumers; and it's past time that progressive porn performers follow the lead of pioneers like James Deen, Dana deArmond, Stoya, Amber Lynn, Kylie Ireland, and the Greatest Goddess of them all, Nina Hartley, and become more outspoken about defending porn and sexual freedom/liberation on progressive political principles. Not that libertarians like Steven St. Croix shouldn't matter, of course, but it's time to cover the entire spectrum.

But, while that develops, bring on the lawyers. This battle is NOT over, by any means.

The Concise Case Against Measure B In 73 Seconds (From Nina Hartley)

Over at the Performers For Choice website, there are nearly three pages of testimonial videos from performers who have spoken out against Measure B.

You may feel free to go there and view them all, because they are as worthy as the cause of defeating this proposal.

But, if you prefer the short and sweet version of why Measure B should be defeated, I think that this ad (mirrored here) by Nina Hartley should suffice quite well. I present it without further comment, since it pretty much says it all.

You know what to do on Tuesday, people of LA County.

In no way am I diminishing the other performers who have come out against Measure B....I'm simply emphasizing Nina because her testimony is powerful enough on its own.

How To Stuff A Porn Panic: The Official Op-Ed AGAINST Measure B In Los Angeles County

I'm sure that it will come to no surprise to you that this blog -- BPPA -- has been strongly opposed to all attempts to impose the condom mandate on porn....and we will apply that same principle to our continuous, steady and consistent opposition to Measure B, the proposed referendum that would impose the condom mandate onto Los Angeles County.

Just as this blog will equally and with the same intensity oppose the already passed condom mandate law now in effect in the city of Los Angeles, and which, if the forces of Cal-OSHA and the AIDS Healthcare Foundation have their way, would be imposed not only in Los Angeles, but even state-wide and nationwide.

Our opposition to this initiative goes far beyond our questioning of the political and financial motives of the ordinance's proponents...although much has to be said about the history of Michael Weinstein and the AHF in exploiting the pandemic of STI's and HIV to suit his/their own personal profits, or the ham-fisted paternalism of the Los Angeles County Department of Public Health and Cal-OSHA in rejecting the testimonies and experiences of active performers and the proven track record of the existing system of peer pressure combined with screening and vigilant testing, or the tainted histories of some of the performers who have become the main symbols of justification for the condom mandate campaign.

Our opposition to this initiative also goes beyond our knowledge of what happens when good intentions are connected to bad, overreaching legislation that promises a panacea or a quick-fix to a problem that is considerably more complex and requiring more of a broad-based approach than merely scapegoating performers who engage in sex as a performance job. Not to mention, legislation that detaches itself from the all too real epidemic/pandemic of STI's and HIV that has devastated poor and working class communities, as well as the very gay communities that Michael Weinstein would claim to want to protect.

Our opposition to this initiative also goes well beyond the attempts by certain personalities to distort the facts and inject fear and propaganda through outlandish claims of "blacklisting" of performers who want to use condoms voluntarily as one tool of many in protecting themselves; or, even worse, overt alliances with some of the most antisex, antiporn, antihumanist activists whose objectives to simply destroy both the LA porn industry and the consumers/fans/producers/performers whom have thrived within it, or simply to rehash old vendettas against organizations who have been on the front lines of defending and protecting the rights and responsibilities of porn performers.

Mostly, however, our opposition to Measure B is based on a fundamental principle that has sometimes been hijacked and distorted by its proponents, but nevertheless remains an essential concept: "NOTHING ABOUT US, WITHOUT US."

Performers in adult entertainment who take the risks should be the ones to decide for themselves what options they choose to protect themselves...and that includes the choice to use condoms or not to. And any government regulation involving protection of performers must have input and consensus from ALL performers and producers, not simply be imposed by fiat by bureaucrats more concerned with getting sweetheart deals with condom companies and NGO's and government contracts.

In spite of some of the "Why, we're all for performer choice, which was denied us when condom-only was removed in favor of condom optional!!" memes being passed around, the fact remains that this proposal would remove some of the best options for performer testing -- namely, a unified and consolidated testing system -- in favor of a "just shut up, wrap up, and hope the condom doesn't break" fallacy.  Even worse, under the system favored by AHF and the condom mandate proponents, there would be no way that an STD+ or HIV+ performer could be screened out, because of antidiscrimination regulations that would prohibit firing of infected performers.

And, contrary to some of the proponents' assumptions, this is NOT an reflexive opposition to the principle of government regulation, a Trojan Horse to the common right-wing view that ALL government regulation is illegitimate and that only the Wild Wild West rules of "do your own thing, and fuck the consequences" should apply. This isn't to denigrate in any way our libertarian friends and allies who may have that view, but who nevertheless join our opposition to the condom mandate on shared principle; it's only to say that there are people on the Left side of the political spectrum (Susie Bright, for example) who have been as critical and incisive in their opposition to the mandate and the entire campaign to impose condoms as our more conservative friends.

Of course, others far more involved than me have opined about the difficulties in funding the enforcement in an atmosphere of budget cutting and triaging of resoures that could be put to much more effective use, or the imminent dangers of overuse of condoms due to potential allergic reactions and even increased cancer risks. Those concerns are worrisome enough to justify defeat of this measure on its own (lack of) merits.

But whether you are on the Left, Right, or Center, the essential case against the condom mandate and Measure B is best explained by the people who would bear the full brunt of such misguided regulation -- the performers themselves. I will close this with the testimony of one of the most renowned and respected performers of the modern era, since she says everything that needs to be said about why Measure B and all such proposals to impose condoms by force and fiat need to be defeated. I yield the balance of this post to Nina Hartley:

“In a nutshell, performers as a rule don't care for condoms for several reasons. For most of the men (with few exceptions), condoms make for a very-much-more difficult scene; just one more huge distraction to add to the host of other ones on the set: uncomfortable set, no chemistry with the female player, asshole director, late/early hours, too hot/cold, bad food, personal issues, etc.

For the women, there are just four words: rubber rash/friction burn. Not only do I have to work harder for him to feel anything, the scene takes much longer to get through, with the changing out of condoms, needing to give the guy a break and suck him again, and the total passion-killer that is on-set condom use. It's hard enough to create a real connection, so the scene doesn't feel to the viewer like we faxed it in, on a set as it is. If all of our energy is focused on our working parts, there is none left over to actually connect and show a spark, which is what the people at home want to see...

...I know it sounds harsh, but it's not porn's job to set a good example to the viewing public. It's an entertainment medium like anything else out of Hollywood, and mainstream entertainment is not held up as needing somehow to set a good example. It's a shame that our country does such a piss-poor job of educating its young people so that they're driven to view porn to try to get a clue about sex. Except when a movie is expressly done as education-the Guides, Tristan Taormino's movies, etc., their job is to arouse and entertain, period...

...Porn is pretty safe. If a player says "no" to the most egregiously stupid acts (cream pies, whether anal or vaginal), then he or she is unlikely to get a deadly disease at work. People do get the non-lethal ones, but they get treated, as do their partners, and they get to work again when their new test comes back clean.”BPPA

Truer words were never better spoken.

More info on the "NO On Measure B" campaign can be found at the Free Speech Coalition blog, and at The Real Porn Wikileaks blog as well. Also, check out Michael Fattorosi's Adult Biz Law blog, too.

Also, see Dr. Chauntelle Tibalis' recent editorial against Measure B at her PVV blog here.

[A disclaimer: This opinion piece reflects only the views of the author and of BPPA, and is in no way affiliated financially or in any other form with the Free Speech Coalition, the Coalition Against Government Waste, AHF, FAIR, or any other organization or group involved in the Measure B campaign.]

Porn Panic 2012: Now It Is Officially War Time: LA County Puts Condom Mandate Ordinance On September Ballot

Well...on Tuesday, the inevitable happened.

The Los Angeles County Board of Supervisors has now allowed Michael Weinstein's proposed "Safer Sex In The Adult Film Industry" ordinance to be put to the voters of LA County, voting 3-1 to send the proposed condom mandate/adult permitting law to the ballot for later this year, probably November. (The full text of the ordinance can be seen here. [PDF document])

The ordinance is pretty much similar to the law that was passed by the City of Los Angeles earlier this year, but has not been enforced as of yet due to concerns about the scope of enforcement.

Essentially, the ordinance, if passed, would require two-year permits for anyone filming explicit sex acts within the county, and mandatory barrier protection, including condoms, for any performance of explicit sex acts within the scope of Los Angeles County, though individual corporated cities would have their own jurisdictional parameters for enforcing the ordinance.

Indeed, as X-Biz.com discovered, in order to be considered legal under the mandate law, adult performers would have to actually obtain two permits; one for the film production and one for "public health", with mandatory training in "bloodborne pathogen barrier protection" also required.

The primary role in enforcing the mandate would fall upon the LA County Department of Public Health Services, which would gain one full-time and one part-time inspector who would be responsible for random permit and "condom checks", along with reinforcement form more traditional law enforcement.

A preliminary memo produced by LACDPHS Director Jonathan Fielding (available here, PDF document) establishes the preliminary scope of the proposed regulations and permits.

Although there was plenty of adult representation at Tuesday's LA County Supervisors meeting, it was obvious that the majority simply ignored their concerns and generally defaulted to the "OMGWeHaveHIVEpidemicInPornWeMUSTProtectThePoorPerformers!!!!" meme.  And considering that AHF spent nearly $2 million to get their measure to the ballot, I'm sure that they have plenty more to spend to promote themselves and get it passed.

That moment we have all dreaded is finally here. It's time for the industry to either unite and fight this, or risk losing everything. Moving to Vegas or Pheonix or New Hampshire won't help things, because this condom mandate will go national if successful. Unless, of course, you want the pirates and tube sites to have a field day selling all the bareback porn which will become the new gold when this ordinance passes.


Update:

Michael Fattorosi, long time attorney representing adult interests, just posted at his Twitter page (@Pornlaw) a link to a memorandum written to the Los Angeles County Supervisors by Los Angeles County Chief Counsel John Krattli, dated on July 23rd, that was placed on the record prior to their vote on allowing the condom mandate ordinance on the ballot. The letter contains much more detail on the parameters of how the law will be enforced if the ordinance passes.

The second most startling information in this memorandum is that even if the ordinance is passed, it would only take effect in the nonincorporated areas in Los Angeles County....and not at all in three cities within LA County: Long Beach, Vernon, and Pasadena; because the latter three cities do not contract out with LACDPH for public health but have their own autonomous public health departments. In addition, there are also 85 other incorporated cities within LA County that would require changes in their policies in order to adapt the provisions of the ordinance; that means that LACDPH would have to get these cities to adapt the ordinance one at a time. That probably would not be an issue considering the deep pockets of AHF and the dominant unpopularity of the porn industry, but it would slow things down considerably in the event of lawsuits against all these jurisdictions.

But even that is secondary to the most startling fact about the LA County ordinance: it goes well beyond even the ordinance passed within the City of Los Angeles, and covers not only porn producers, but anyone who produces or films explicit sex and puts the results online, whether for profit or not. It basically gives LACDPH inspectors a free reign to raid any home or place where they suspect someone is making porn without the required permit, and allows them to seize any and all materials suspected in the making of such videos. It also requires anyone seeking a permit to enroll in a mandatory "blood pathogen training course" prior to receiving a permit, enlists huge fines and possible jail terms for anyone shooting non-condomized porn or even shooting without a permit, and essentially uses the costs of the permits to fund the entire effort on the backs of porn performers. And, that would include even homemade websites, webcam performers, and even personal videos not even intentioned for profit.

In effect, this ordinance would criminalize the filming of bareback sex, even among married monogamous couples and other people with no risk of even coming close of contracting STI's such as HIV, and would predicate a grave intervention into the bedrooms of consenting adults...as grave as even sodomy laws or laws against "cohabitating".  That in and of itself should prompt people to reject this proposal, and question its Constitutionality. But, that this is seen as the preferred solution to the NON-issue of HIV in porn, and that this proposal flies in the face of the reality of porn production, and would impose serious dangers on porn performers due to the replacement of the testing and screening regime currently in place..that should give people serious thought to the actual agenda here.

There are many ways to tackle the scrounge of HIV and other STI's. Forcing adult performers and private consenting adults to be guniea pigs for the State is NOT one of them.