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.

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.