Sunday, January 26, 2014

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

Condom Mandate Update: CalOSHA "Landmark" Ruling In Treasure Island Media Case Seals The Debate On Condoms In Porn...Or, Doesn't.

Interesting event happened on Friday that might have some major bearing on the entire Condom Mandate battle in Los Angeles County....and beyond, even nationwide.

In 2009, the AIDS Healthcare Foundation filed a grievance with CalOSHA against a San Francisco-based gay porn production studio, Treasure Island Media, in which they claimed that by not using condoms as part of their scenes, TIM was in violation of the "bloodborne pathogen" standard requiring the use of "barrier protection" in all scenes as a means of STI protection. Never mind that no one in any one of those scenes were found to be HIV- or STI-positive, or to have been infected with HIV or any other STI as a result of those scenes; the point was, according to AHF, to establish CalOSHA's power to impose the condom mandate at will against any porn production company statewide. CalOSHA had sanctioned TIM in Feburary of last year with two violations of the standard, to which TIM appealed to CalOSHA's built-in judicial appeal process.

Well...last Friday, CalOSHA Administrative Law Judge Mary Dryovage made her ruling on the case; siding with CalOSHA and upholding the sanctions against Treasure Island Media. In her ruling, she essentially rehashed the standard AHF propaganda points that condoms were the only true means of preventing disasterous outbreaks of STI's, and that porn performers absolutely must be regulated as "employees" for their own "protection", and have condoms forced on them for their own "good".

Naturally, AHF is crowing loud about this "landmark" decision, saying that it effectively ends the debate on condoms in porn by establishing CalOSHA's inevitable right to regulate bareback porn out of business. Here's AHF's spokesperson Ged Kenslea, riffing on, via proven AHF sycophant...errrrrrrrrr, LA Weekly regular columnist Dennis Romero:

AHF spokesman Ged Kenslea told us that one of the most important aspects of the ruling ...
 ... is its affirmation that performers are indeed employees due protection under under workplace safety rules. The group has long argued that federal law prohibiting exposure to bloodborne pathogens such as sperm at the workplace applies to California's adult performers.

The industry has said that porn stars are very part-time workers who paid per "scene" as independent contractors.

The ruling by Judge Mary Droyovage wrote that, without condoms, there is "substantial probability that employees would suffer serious exposure resulting in serious physical harm or death if violation occurred."

Kenslea said AHF's stance is that the ruling applies only to condom use and that it does not mandate dental dams, surgical masks, eye protection, gloves and other gear feared by the industry.

The case involved a "bareback" sex tape by Bay Area studio Treasure Island Media. The video featured multiple partners on film, none apparently using condoms. Treasure Island appealed Cal/OSHA's sanctions, leading to the ruling.

The AHF was "a catalyst for" the ruling, Kenslea said, because the case included a complaint from the organization. He said he was surprised the studio appealed.
The decision was also praised by yet another even more pro-AHF sycophant, former producer Mike South, who breathlessly repeated the same old AHF talking points that this all but clinched the condom debate....not to mention that not only could Cal-OSHA could set the rules regarding the condom mandate, but because their rules could be expanded nationwide by the federal OSHA, they could be enforced everywhere in the US. In other words, to rephrase AHF President Michael Weinstein's well quoted saying: "Whereever they go, we will follow them."

Case closed, then?? Ahhhhh....not quite.

There is another side of the story, of course, and The Real Porn Wikileaks just so happened to get Treasure Island Media's response to the ruling and subsequent barrage of BS from AHF.

For starters, they noted that while Judge Dryovage did sustain the original CalOSHA sanctions, she did significantly reduce the fines involved: totally eliminating the fine for one count (from $9,000 to $0); and reducing the fine for the other count from $9K to $6,300.

And secondly, they loudly announced that the principle of defending sexual freedom demanded that they further appeal the decision to an even higher court. Here's attorney Karen Tynan, who represents TIM, speaking via TRPWL:
[...] “Having the fines lowered by a total of nearly two-thirds is a very significant win for us,” said Karen Tynan, Treasure Island Media’s attorney.

Tynan went onto say, “We will be appealing the decision with a Petition for Reconsideration on the grounds that the decision was unsupported by the facts.” Among the issues regarding the sufficiency of evidence: Cal/OSHA’s star witness was a disgruntled former employee who had been terminated in 2010 and their medical expert was an osteopath (a branch of medical practice that emphasizes the treatment of medical disorders through the manipulation and massage of the bones, joints, and muscles.) who last treated communicable diseases almost twenty years ago.
Apparently, AHF went to the tried-and-true tactics of antiporn crusaders of yesteryear: the old "OMG...OMGOMGOMGOMG...the SHOCK AND HORROR of such disgusting, nasty, filthy buttsexin' goin on!!!" card.
At issue was The 1000 Load Fuck, directed by Morris. The 2009 video pushes the envelope, taking porn into taboo regions of the forbidden and depraved. In a bold and unprecedented experiment, one young man voluntarily takes a gallon of semen up his ass.

We watched the video over and over and over. Then we watched it in slow motion, reverse, and paused it on almost every frame,” said TIM General Manager Matt Mason, who testified for almost a day and a half and withstood hours of cross examination by Cal/OSHA attorney Kathryn Woods. “The state prosecutors took special interest in the turkey baster and the liquid fun in that scene.”
In effect, AHF used this movie the way antiporn prosecutors used Ira Issacs' alleged scat videos, or Gail Dines used "gonzo" porn: as a means of shocking and scaring and shaming "aberrant" sexual practices to illicit the usual response of anger and disgust and "There outta be a law against that!!!" meme. Or, in this case, "They better cover that up with a condom!!!"

It remains to be seen how the appeal process will resolve this case...or if this "landmark" decision really is the end of the line for bareback porn....although, I'm sure Isadore Hall and Michael Weinstein are already writing the speeches that Hall will use to integrate this ruling into their next legislative attempt to force Measure B statewide, or to aid CalOSHA to craft the ever evolving "bloodborne pathogen barrier protection" regs as a wedge to be imposed nationwide.

And, I'm just as sure that those who perform and enjoy bareback porn -- whether gay or straight or bi or whatever combination thereof -- will equally battle to defend their freedom and right to do so.

Either way, this isn't over, by any means. Stay tuned.

Wednesday, January 22, 2014

"Porn 101" -- The Remix: Adult Performer Advocacy Committee's MUST SEE Introductory Porn Video

[Personal note by Anthony: Yes, I know, it's been quite a while since I last posted here at night job combined with some sheer laziness on my part has contributed to that. I'm going to do my best to re-crank the posts here more often....and also add some more personal commentary rather than just recapping current porn events. Just be assured: BPPA isn't dead, by any means.]

Way, way, waaaaaaay back in the 1990's, when the LA porn industry was still more like the Wild Wild West in regards to its quasilegality and its means of protection, the idea of having an introductory video for people interesting in having sex on camera for pay might have seemed radical. Back then, though,  testing was still mostly a hit-or-miss proposition via the ELISA antibody test, and knowledge and education of the risks of live sex was spotty at best. That began to change after the 1998 "outbreak", where a performer was confirmed to have gotten infected with HIV (and faked his tests to hide that result); the Adult Industry Medical Foundation was founded soon afterwards, and DNA testing greatly improved the quality of protection. It also helped that AIM founder Sharon Mitchell got some of her best friend porn performer allies, including a well known performer at that time named Nina Hartley, to create a video and circulate it amongst budding ingenue performers. That video, titled "Porn 101", became the standard of that time for introducing newbies to the fruits and the hazards of being an adult entertainerHepa.

Flash forward to the current era...where testing is now worlds beyond even the heights of the 1990s, where the Internet and social media have both revolutionized and terrorized the porn industry, and where the rewards and risks for performing sexually explicit imagery have been amplified even more thanks to the added profit streams. Given all the drama of the past few years with piracy, STI/HIV panics, and the condom mandate, getting performers to speak in one unified voice and offer clearer and safer paths for noobies wanting in on the action is an even dauntier task than ever.

Which is exactly why the formation of the Adult Performer Advocacy Committee couldn't have come at a better time.

APAC was originally the brainchild of performer/director Mick Blue and performer Anikka Albrite, who decided after the Great Hepatitis C and Cameron Bay/Rod Daily HIV scares of last year that it was time for performers to get together to represent themselves. Then they got two serious heavyweight high-profile performers, James Deen and Stoya, to join in and develop the core of the organization. From there...well, I'll just quote Mark Kernes' recent AVN article:
"APAC was basically formed by Anikka [Albrite] and me in my kitchen," explained veteran actor/director Mick Blue, "and then we brought James Deen and Stoya into it, and then the four of us started to build the APAC group, and Nina Hartley and all the others came to APAC later."
I should note that APAC is NOT related in any way to the group Adult Performers Coalition For Choice (APC4C), that was formed in the wake of Los Angeles County's Measure B campaign...though the two groups do share common goals.

As part of the process of organizing and educating performers, Blue hopped on the idea of updating that classic "Porn 101" video for the more modern era:

APAC has had several meeting[s] over the past few months, with one of its primary aims being the production of a new Porn 101 video. To that end, according to Blue, Kimberly Kane, Chanel Preston, Jessica Drake, Anikka Albrite and Danny Wylde met as a group to create a script for the project.

"One of the things I want to make very clear is that APAC as a group is responsible for the things APAC does," Blue said. "Kimberly Kane, Jessica Drake and Nina Hartley, they basically thought about doing another Porn 101 many years ago, but it never happened. Then, after the first Hepatitis C moratorium came up last year, followed by the first HIV moratorium, Anikka Albrite and me said, 'We need to make a change now to the industry,' so I started calling people and said, 'Okay, guys, we need to get together; we need to make a change. We need to form a performers' group where we can create a voice for performers, and speak, for example, to the producers and also Free Speech [Coalition] about moratoriums and so on.' When we shot the Porn 101 video, we invited other people to speak in front of the camera. It's now on YouTube."
To say that the Porn 101 remix is impressive is an understatement. Check out the cast:
And it's a hell of a cast. Besides Blue and Albrite, appearing in Porn 101, in no particular order, are Jessica Drake, Nina Hartley, James Deen, Danny Wylde, Stoya, Kimberly Kane, Kylie Ireland, Chanel Preston, Asa Akira, Kelly Shibari, Dani Daniels, Nyomi Banxxx, Bonnie Rotten, Penny Pax, Jon Jon, Casey Calvert, Toni Ribas, April Flores, Wolf Hudson, Xander Corvus, Ryan Driller, Claire Robbins, Chloe Foster, Jay Taylor, Alina Li, Zak Sabbath and Mandy Morbid—many of whom are also members of APAC.

"For us, it's all about the need to make our industry safer and to explain to people that are working in the industry that they have responsibilities to all the other people they work with," Blue said. "It's like explaining to them, 'Look, you need to watch out what you do in your private life because everything you do in your private life can put everybody who is in the industry who is working with you in danger as well, as we've seen in the past three moratoriums.' So we hope that through this video, people are going to get a better idea about our industry and about their responsibilities and also about their own bodies and their own safety regarding agents, producers and so on."
Kernes' article does a much better job of summarizing all the goodness of this video; feel free to go to his article. I'd rather just let you watch for yourself. So, with full thanks and appreciation to APAC for their permission to repost: here you go, folks. (Original here, via YouTube, props also to

Well done and done well, gang!!!