Alexander S. Birkhold Flushes The Arguments For The Condom Mandate With Authority (Washington Univ. Law Review Legal Thesis)

This may be one of the best legal arguments against the condom mandate I've seen in quite a while.

Alexander S. Birkhold, originally a writer for the New York University School of Law, has written a thesis paper for the Washington University Law Review, in which he authoritatively debunks condom mandate laws such as Measure B and the Safe Sex In The Adult Industry Act as gross violations of the First Amendment protections of free speech and consensual sexual expression. Although his main focus is on the impact of such laws on gay bareback sexual acts, I don't doubt that straight/hetero sexual performers could benefit from his analysis as well.

Here's his paper, originally released by Washington University's Law Review as part of their free Law Commons series, and reposted by moi via Scribd.com.

Birkhold-WashULawSchool-PokingHolesInMeasureB

Why We Shouldn't Shoot All Of The Lawyers: VIVID's Counterbrief Response To AHF's Defense Of Measure B

To set this up right: VIVID, along with co-plantiffs Derrick Pierce and Kayden Kross, is attempting to appeal the preliminary ruling in the still ongoing Measure B appeal, in which Judge Dean Pregerson set aside certain portions of the law while upholding the main parts requiring condoms for porn shoots. They are also attempting to disqualify the AIDS Healthcare Foundation as a "putative intervenor" on behalf of the law. AHF had earlier filed their own brief defending the law; linkage to that brief can be found here. (Mark Kernes' excellent breakdown of AHF's brief is here.) This brief is the plantiffs' response to AHF's brief....and as you will see, it stands on its own for its full fledged takedown of AHF's arguments and of Measure B in general.

MeasureBLawsuit_VIVIDResponseBriefToAHF.pdf

Nina Hartley Speaks Out On The Latest HIV Porn Scare (Or...How Truth Is The Only Lysol For Rumor And BS)

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

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How The SCOTUS Prop 8 Repeal May Have Kneecapped AHF's Measure B Defense

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More AB 332 Blowback: Could There Be A Statewide Initiative On The Horizon??

Well...after the California Assembly's Appropriations Committee decided to put the statewide condom mandate bill, AB 332, on temporary ice via "suspense", you got the typical reactions from both sides of the condom debate.

First, this from the Free Speech Coalition, via their director, Diane Duke:

“We are grateful that lawmakers have chosen the best interest of California’s taxpayers and the adult industry over AB 332’s misguided legislation,” Free Speech Coalition (FSC) CEO Diane Duke said. “The adult industry creates a tremendous amount of revenue and jobs for California. We have effective, successful standards in place to protect performers. This ridiculous bill was a solution without a problem.”

 What also gives opponents of the condom mandate some encouragement is the reason Appropriations Committee Chairman Mike Gatto gave for tabling AB 332 (from here, via here):

“Passing a bill, of questionable First Amendment validity, that would certainly subject the state to expensive lawsuits, would simply cost too much for California right now,” he said in a statement.

Needless to say, Michael Weinstein of the AIDS Healthcare Foundation and Isadore Hall III, the Assemblyman who sponsored AB 332, have a radically different spin....errrrr, perspective on the bill's future prospects.  And, they are not too happy with Assemblyman Gatto, either. First, here's Assemblyman Hall's brief response, as quoted to the Rock Hill, CA, HeraldOnline website (and reposted by Lydia Lee at her blog):

“No vote was taken today on AB 332 and the bill is not dead. In a two year legislative session, there is plenty of time for this important public health measure to move forward. At this point, one thing is clear. Assemblymember Mike Gatto has put porn profits above the need to protect workers in California. He gives a whole new meaning to the term ‘money shot’.”

Of course, the reason why no vote was taken was because originally at the first Appropriations Committee hearing Hall himself had requested that the bill be pulled, and then Gatto acted to put the bill under "suspense"....and Hall didn't challenge it because he probably realized he didn't have the votes to override Gatto's decision.

But, oh, that was secondary to the reaction from Mike Weinstein of AHF....and he added a thinly veiled threat to take the battle to the next level. From AHF's official statement:

“We are still in the early rounds of the fight for protection of porn performers. You don't win every round. We won't stop. There are still 3 months in this legislative year, which is more than enough time to successfully provide statewide protections for adult film workers,” said Michael Weinstein, President of AIDS Healthcare Foundation. “Access to clean needles for drug users took more than a decade to enact. Since it is apparent that a powerful politician like Assemblyman Mike Gatto favors pornographers over performers we may in the end need to take this issue directly to California voters. We have no doubt that they would overwhelmingly approve condoms in porn the way that L.A. County voters did.”

Forget for a minute the Big Lie of AHF claiming to represent "protection of porn performers" (especially in the face of almost universal opposition from the overwhelming majority of active performers). It's the threat of a public statewide referendum (a la Proposition 8) that should get people's attention. Obviously, they really do think that they own enough of California that they can browbeat the Cali Assembly into submission like they did the City of Los Angeles, who most recently modified their own condom mandate to follow the tougher edicts of Measure B, the Los Angeles County based condom mandate that passed via referendum last year.

Notice also the strained comparison Weinstein makes to the clean needles exchange program...which, if I recall correctly, was an initiative of ACT-UP in the 1980's-1990's in the face of the HIV/AIDS pandemic. Considering AHF's long history of opposing harm prevention and self-cure remedies and measures such as this due to wanting more "behavior modification" strategies, it seems a stretch for them to take such huge credit for enabling drug addiction.

Unless, of course, the real idea is to allow HIV+ performers (read that to mean HIV+ gay male performers such as Derrick Burts) to escape the testing regime and use mandatory condoms and the antidiscrimination laws in Cali as a blanket of employment protection for crossover gay men who might be HIV+?? Between that and the megabucks of proper condom placement and NGO funding, could that be the real initiative behind AHF wanting to blow up the existing testing/screening regime that hetero adult porn has survived on?

Now, imagine what would happen in such a regime where testing is thrown out and condoms (and other such forms of "barrier protection" as face shields, gloves, goggles, and PPE) are totally relied on as the principal means of "protection"...and an infected performer just so happens to shoot a scene where his partner has no means of knowing whether he is clean or infected. Now...imagine what happens if the condom happens to break, or the performer, in his state of arousal, decides to remove it before the scene.

Yup....you got it. And that's before we get to the STI's that condoms don't provide protections against.

Now, Hall and Weinstein has been more than coy about their positions on testing; on the one hand, they say that they are not against testing at all, as long as condoms are still mandated; yet, their stated policy has been that condoms would render testing unnecessary; and that testing is simply a failure of will by the "pornographers" who put their evil profits above the "protection" of the performers. Not to mention, the proposed standards for testing and "barrier protection" for "bloodborne pathogens" that is currently being proposed by Cal-OSHA, the statewide agency for workplace protection, specifically ignore testing for STI's, preferring condoms and other forms of "barrier protection" as their main, if not exclusive, form of protection.

And remember, folks....this isn't just for big time porn production studios. If you own a pay website or a webcam, and have live sex on screen or online, you are or will be or potentially could be affected by this bill....just as you will ultimately be by Measure B if you live in Los Angeles County.

And...what passes California will probably be imposed nationwide, too. To remind you of Mike Weinstein's solemn oath: "Wherever they go, we will follow."

Shooting some pennies to APC4C.com and StopCondomLaws.com would be a good idea indeed. Supporting your favorite porn performers who speak out against AB 332 and Measure B would be even better.

More Education On Performer Choice: Nina Hartley Raises The Bar (Video For APC4C/Stop Condom Laws)

Damn, but Lydia Lee does not play.

Barely 48 hours after she releases her own video for APC4C and StopCondomLaws.com, the porn star emeritus/ass kicker formerly known as Julie Meadows goes and gets Nina Hartley to do one of her own. And, as usual, Nina raises the bar beyond the reach.

This was just released to Lydia/Julie's YouTube channel earlier this evening. I hope I didn't beat Lydia to the punch this time before she releases it to her blog. If I did....well, it's worth it.

Original video can be found at Lydia Lee's Julie Meadows YouTube channel and at Lydia's blog.

The BEST Educational Video On Adult Performer Choice EVAH: Lydia Lee (fka Julie Meadows) For Adult Performers Coalition For Choice (APC4C)

If there was a need for a video like what I am about to show, it is now.

And if there was a more eloquent spokesperson to spell out the arguments for genuine performer choice not ceded to either government or special interest groups like AHF, it can't get much better than Lydia Lee.

She originally introduced this video to her YouTube channel and her blog, but it is so comprehensive and so devastating that it deserves a wider audience. So, with her permission and that of APC4C, I am reprinting it here.

Copyright 2013, Julie Meadows Entertainment; used with Lydia Lee's permission. Originally posted to her blog and her YouTube channel. Also props to APC4C and StopCondomLaws.com.

The "Argument" That May Have Sealed The Deal For Measure B: Amanda Marcotte Representing The Paternalistic Feminist "Left"

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