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

Porn Panic 2012: Primer On Facts Rather Than Hype: Ernest Greene Redux (2009 "Scare") -- Part Deux

[A continuation from Part One]

When we last left, Ernest Greene had just finished setting up the characters involved in that attempt to milk that 2009 HIV "scare" into their condom mandate/destruction of AIM Medical Foundation/make money gullywasher for AHF crusade. Now, he begins to give us the method to accomplish their madness.

Cal-OSHA, which would be charged with imposing the mandatory condom scheme outlined in Kerndt’s plan, has only one established standard for dealing with potentially pathogenic bodily fluids. It was written for health workers and IACB [Iamcuriousblue, BPPA contributor] summarizes nicely the more extreme and irrelevant provisions of Cal-OSHA’s blood-borne pathogen provisions:

“The last time OSHA became involved, the rules they set down were pure overkill, mandating not only condoms for high-risk acts, but use of dental dams, gloves, and, I kid you not, eye goggles for all sexual contact. They basically took the rules they've mandated for medical workers and applied this to the porn industry, without regard for context.”

Of course, as you now know, Cal-OSHA is now promulgating new regulations into the official record for imposing on the porn industry, essentially building on those very same principles of "barrier protection" from "bloodborne pathogens" and other dangerous "bodily fluid" exposure. While Weinstein has denied that the new regs will offer nothing different other than mandating condoms for all penetrative anal, vaginal, and oral sex acts; there is nothing in the regs that would preclude Cal-OSHA from also requiring goggles and face shields for facials, or dental dams for oral sex acts, or even PPE (personal protective equipment) for accidential exposure to blood or other bodily fluids. The only exception that was even considered was for oral sex...and even that was conditioned on the performers having to endure a regimen of shots for Hepatitis C and an ensurance of clearance from a licensed doctor before each act of oral sex. Emphasis on each act. And, it's only a consideration, because as of now, there are no exceptions to the requirment of "barrier protection" for any penetrative act of sex that is placed on film.

Naturally, those same requirments are also integrated in the LA County proposed ordinance, with porn performers and producers required as part of obtaining a permit to shoot porn to endure a "bloodborne pathogen/barrier protection" course, along with mandatory reports to the LADPHS tracking their compliance with the ordinance, with surprise raids and spot inspections added for good measure. The LA City law thus far does not have such stringent requirments, only calling for mandatory permits conditioned on the condom mandate..but the details of enforcement are still being fleshed out by city officials. A similar law was passed by Simi County in suburban LA, but that county is far more socially conservative and far more resistant to porn production than LA County or the city of Los Angeles.

As he says, such an unworkable regimen would be universally flouted, essentially turn a legal industry into an illegal in which state regulations were routinely violated, making producers and other performers liable for confiscatory fines and other administrative restraints clearly imposed by an agency whose agenda is not regulatory, but rather prohibitionist.

No surprise there. Members of Cal-OSHA’s staff, like those of Dr. Fielding’s department, have been unbendingly hostile in all my face-to-face dealings with them since 2004. They’re approach to performer safety is to destroy those performers livelihoods and drive the industry out of the state completely. Confronted with this prospect, Dr. Kerndt stated directly that he wouldn’t object if that were the result.

Of course, Mike Weinstein would insist that they are not interested in censorship or driving out the industry; their only interest is in the safety and well being of the performers who are simply pawns of an aggressive industry that uses women (and men) for their profit. Which totally explains why they ally themselves with the likes of Shelley "Porn Is Legalized Slavery" Lubben. Now, it may also be that some avant-garde porn producers and softcore/simulated sex producers of Showtime/Cinemax late-night "erotica" might also benefit from running explicit XXX media out of Hollywood's shadow due to getting rid of the competition for talent and content...but the exposition of that argument will be taken up another day.

And besides that, Weinstein and Cal-OSHA has made it abundantly clear that this isn't just a California mission; they are serious in planning to take their crusade for the condom mandate nationwide, either through the national OSHA extending these rules or other jurisdictions passing ordinances like LA County's. Or, as he put it: "Wherever they go, we will follow them."

But wait...it gets worse.  Much worse.

Worse, if that’s possible, than Cal-OSHA’s plan for porn would be the means through which it would have to be put in place. Cal-OSHA has jurisdiction only over employees. Independent contractors, which is how porn performers not under contract to specific companies, are currently classed under state law, would not be subject to Cal-OSHA supervision unless reclassified as employees.

So what, you might ask, is so bad about that? After all, it would make them eligible for workman’s comp and provide them with a mechanism for reporting unsafe working conditions on the set.

There’s just one little hitch in this plan. It is against the law in California for any employer to require an HIV test, or even to ask about a potential employee’s HIV status, as a condition of employment. Doing so is considered employment discrimination and carries significant penalties to the employer.

In fact, if performers were considered employees rather than contractors, it would be illegal for a producer to hire [fire???] a performer on the grounds that said performer was, in fact, HIV positive. That’s right. Producers would be required to hire HIV+ performers, and if other performers didn’t like working with them, those performers would be fired while the HIV+ performers would be allowed to remain on the set until partners could be found who would work with them.

This, put simply, is insanity. In thirty-five years of legal pornography in this country, not a single clinical death has been correctly attributed to HIV transmission in the making of heterosexual porn. During that time, thousands of sexually active young Californians from very similar demographic cohorts have died of AIDS contracted in circumstances utterly unrelated to porn, including a significant number whose cases were contracted in bathhouses and sex clubs where HIV prevention has been the province of governmental oversight.

Our good fortune in porn is directly attributable to two things: constant voluntary testing and the much-derided conceit of the external ejaculation, which significantly reduces the risk of serum transmission through mucous membranes.

This is the portion that so many opponents of the condom mandate usually ignore, but what strikes fear into the heart of many performers..especially since the  2010 "outbreak" in which a bisexual performer (Derrick Burts/Cameron Reid) managed to get infected with HIV on a gay male shoot in Florida in a condomized scene, while he himself was infected with either gonnorrhea or chlamydia, yet nevertheless was able to readjust himself to become the designated "smoking gun" victim of the AIM/Porn Industrial Complex at all those AHF/Cal-OSHA hearings and press conferences...his Rentboy.com profiles and open admission of bareback swinging and escorting aside.

Indeed, my own personal theory is that the reason Weinstein (who,after all, is gay and whom has no problem with promoting bareback gay porn when it profits him, as one trip to his thrift store will show) is so hot on mandating condoms is exactly to exploit the antidiscrimination laws protecting HIV+ gay performers to allow them to cross over into the more profitable hetero porn field. Since the testing and screening process currently in place in "straight" porn would obviously get in the way of allowing gay performers that opportunity, what better way to topple it and replace it with the system of condoms only with little or no testing that assumes that HIV+ performers are there and have the right to perform...regardless of how the others feel about losing their protection and having to just trust the condom.

Of course, not all or even a majority of gay male performers are HIV+ or evern STI+, and there should be no excuse whatsoever to justify homophobia of any kind..especially not the kind of gay bashing that the original Porn Wikileaks (NOT the current site run by Sean Tompkins, which is 120% legit and prejudice-free) ran freely when it was at its peak.

And, oh, by the way?? It should be noted that under the proposed Cal-OSHA regs, facials would be banned as overexposure to "bodily fluids". Only condomized internal shots or faked-up "money shots" would be allowed if this mandate were to pass.

But wait a minute, didn’t I say that gay porn is made without testing but with condoms instead? Why wouldn’t that work in straight porn as well?

In part, because it doesn’t really work in gay porn. Though condom use has become less of an absolute in gay porn, it has been the standard for 20 years, during which time, unlike in straight porn, a number of performers have died of AIDS. This is most likely a result of imprudent behavior in their personal lives rather than on the set, but it points to an important difference between the composition of gay and straight talent pools.

An unspoken by generally accepted truth in gay porn is that many performers are already HIV+ when they enter the industry. Producers and directors make quiet but diligent efforts to pair them only with other already-infected partners, but the fact remains that testing is regarded as pointless in gay porn because, as one of the best known gay directors told me privately, “it’s just assumed that all of our talent is or will be infected and that the use of barriers is a secondary precaution.”

And given the propensity of most gay men in porn to engage in the highest risk behavior in enviroments that also include the other high-risk elements such as sharing dirty needles or unprotected sex on the "down low" with other infected individuals, it would be prudent to make such an assumption. However, as Susie Bright has recently pointed out, a gay man who is currently undergoing sero-treatment for HIV might actually be safer for sex than a "civilian", because his drug regimen has so reduced his viral load count to a level that no longer threatens infection.

Then again, AHF has not exactly been known for its enlightened policy towards actual treatment or developing effective vaccines; as Weinstein's recent whining and bitching about Truvada being approved by the FDA as a trial HIV vaccine clearly shows.

Our model in straight porn is to try and keep the talent pool disease free rather than simply accept the permanent presence of infected performers as a necessary work-around. If you visit the web site that lists all the porn performers who have died during the past twenty years, you’ll find that the overwhelming majority of them were gay male players who died of AIDS. The risk of a similar situation in straight porn is what Fielding, Kerndt, Weinstein, et al would subject us to in the interest of setting a better example for our audiences.

Given the essential fact that there has been NO cases of any straight performer getting infected with HIV from shooting a porn scene (and no, Derrick Burts still doesn't count, because even he admitted that he got infected off camera) since the Darren James/Lara Roxx "outbreak" of 2004, I'd say that the regime of testing by AIM has been an unmitigated success...in spite of all the distortion and lies put forth by AHF, Cal-OSHA, and the Holy Ex-Porn Sluts of the Lubbenite Order. And, it should be noted that even in that scare, only two more performers were confirmed to have been infected in that instance.

Thanks but no thanks to that noble sacrifice. For uninfected female performers, not only are condoms in the absence of testing a more dangerous approach than bare-backing with tested performers, it actually puts them at greater risk. To understand why, it’s necessary to recognize that sex on camera is quite different from sex in private.

As a director, I allow two and a half hours to shoot a typical boy-girl sex scene. That’s over two hours of intercourse in various positions with constant stops and starts during which male performer’s erections rise and fall, condoms frequently tear or unravel and the degree of latex abrasion on the internal membranes of female performers’ vaginas lead to micro-abrasions that make them more vulnerable to all kinds of STIs. Most condom-only female performers eventually abandon condom use, not under pressure from producers, but rather because of the constant rawness and end-on-end bacterial infections produced by countless hours of latex drag.

Now, here is where the "sex-positive" wing of the pro-condom mandate crowd would shout in unison: "But...but...b-b-b-b-b-b-but....that's nothing that lots of lube can't prevent!! You're just making excuses not to wrap up for the good of mankind...and you're a selfish traitor who puts your own profits and pleasure above everyone else's safety!!!" And on the side, you will find that minority of performers (such as legend Brittany Andrews) who will add: "Oh, yeah?? What about those of us who would love to perform with condoms for safety's sake, but are pushed aside by greedhead producers who won't hire someone like me because we insist on condoms?? We're for performer choice here..as long as they all insist on wrapping up!!!"

Their concerns are totally legitimate and should be addressed seriously by anyone opposed to the condom mandate as I am (and Ernest Greene is and has been). It should be a given that NO performer who wants to insist on condoms should be blackballed or denied gigs merely because they prefer their partners to be wrapped. Our point, though, is that the same right of choice should also go to those performers who would prefer unwrapped dick, and insist on other means of protecting themselves, such as frequent testing and verified clean tests using the most up-to-date technology and a commitment to responsibility for their profession and craft.

Condoms are fine for ordinary folks having a quick bang, but they’re not suited to effective use in porn. I know whereof I speak because I refuse to shoot as a director for any company that won’t allow performers to use condoms if they wish and have probably shot more condom footage than any straight porn director alive. I began doing so way back in 1993, when all we had was the elisa test, which though still regarded as the so-called gold standard outside of porn because its antibody detection screening is virtually never wrong when it comes to detecting active HIV cases (if you’ve got HIV antibodies in your bloodstream, you’ve got HIV, no doubt about it), may not detect a case for as long as six months, while the PCR-DNA test has a window period no longer than two weeks. That’s still too long, and I would personally prefer twice-monthly testing to reduce the false-negative results that contributed to the situation in 2004. But it’s a lot safer than a six-month interval during which a newly infected person would be at his or her most contagious, having the highest viral load because antibodies had not yet begun to fight the progression of the disease process. From having shot so much condom footage, I would estimate the condom failure rate at about 15% in any given encounter.

The industry has since then adopted even stricter standards of testing (thanks to the newly created APHSS replacing AIM) and better testing procedures (such as the Abbot and Aptima RNA tests), and performers are also more adept on requiring more stringent test verification (with most performers requiring clean 2-day past tests) or reducing their on-screen or online sexual partners to those who they trust. One of the main issues with Cal-OSHA, also, is that they still utilize the old ERISA test for verifying HIV infection, even to the point of offering that particular test free of charge. By contrast, APHSS (as did AIM before them) requires more modern tests and protocols that, while they do cost money, are far more effective at tracking down and verifying infections much quicker. The actions of porn conglomerate Manwin in creating a pool for funding performer tests will go a long way towards making those tests more accessible to more performers.

So, if we give up universal testing in favor mandatory condoms, what we would have is a large group of internally compromised female performers having sex with a number of men whose HIV status would be unknown.

I ask anyone reading this who is HIV- if he or she would knowingly have penetrative intercourse with someone who they knew for a fact was HIV+, condom or no condom. I’m betting the honest answer for the overwhelming majority of readers would be “no way.” That is just plain common sense.

The choice is pretty simple and pretty stark: condoms or testing. It is legally impossible to have both. At the investigative hearings in 2004, lawyers for the ACLU made it clear that numerous challenges to the anti-discrimination laws sought by specific professions to weed out HIV+ potential employees were successfully resisted in court challenges and that the ACLU would vigorously resist any attempt to gain such a waiver for the porn industry.

I repeat: testing or condoms: that is the choice. If you’re HIV-, it’s pretty much a no-brainer.

Also...simply to say that porn performers are by nature of their profession more likely to engage in "dangerous" high-risk sexual encounters, or encourage their regular viewers to engage in "dangerous" bareback sex, when people have been engaging in those same acts for centuries, if not millenia, before they even had the possibility to watch such acts on screen or on line, sounds a lot like the kind of scapegoating and targeted group witchhunting more prone to a reactionary campaign, not a progressive one.

You don't ban professional wrestling or force pro wrestlers to wear protective gear just because a kid watching WWE Smackdown! decides to attempt The Rock's patented Rock Bottom closing move and thusly cracks his elbow; you repair him and remind him that Dwayne Johnson is a professional sports entertainer trained to perform his craft, and that you shouldn't really attempt such moves yourself. You don't ban shows like MTV's Jackass just because some idiot decides that it would be a good idea to catapult himself off his roof; you laugh at his stupidity and remind him that what he sees isn't quite what is really going on.

Porn, contrary to the ramblings of some wannabe Grundys and self-appointed Samaritans, is not supposed to reflect dominant political tastes or invoke official social ideology.  It is intended to do only one thing: get people horny. As long as no one is hurt, forced against their will, or otherwise denied or not fully conpensated for his/her labor of love or lust, ultimately, what consenting adults do or how they do it should be none of our concerns. When someone gets hurt or coerced, on the other hand, that's when government or the proper authorities should step in and adjudicate the situation and address relief for whatever injuries are sustained...but otherwise, there are far more pressing issues for people to deal with than micromanaging how they engage in consensual sex.

I will end this with Ernest Greene's concluding paragraphs, since they speak for themselves why we do NOT need, and should oppose, any attempt at a government mandate at forcing condoms or any other form of "barrier protection" on performers under the guise of "protection".

Instead, whatever we do, there will always be some risk associated with sex among groups of young people whose behavior off-set cannot be entirely controlled.

Personally, I’ve always thought the term “safe sex” was something of an oxymoron. Whatever measures are taken, physical intimacy is never completely free of risks of various kinds. It is from that understanding that the current harm-reduction approach, which has saved countless lives over the past decade by acting as an alarm system rather than a policing operation, evolved as it has.

No matter what we do, we will find ourselves back here from time to time, dealing with the worst outcomes as they inevitably arise.

No occupation is without hazard. When compared to things like commercial fishing, mining, logging, construction, fire-fighting and, of course, military service, porn rates very low on the list of dangerous occupations according to The Bureau of Labor Statistics. It’s no accident that porn is as safe as it is. The porn community’s own efforts, free of the ignorant and sometimes malicious attempts to interfere with them, have kept it that way.

But three is no absolute guarantee that any system will always work, and attempting to require that guarantee in porn, when it is not required in any other occupation, carries with it the prospect of truly catastrophic failure.

The existing system is not perfect, but it is far superior to any of the schemes proposed to replace it.

That is where we are and that, no matter what happens, is where we’re likely to end up staying.

Feel free to spread this to anyone living in Los Angeles County...and then let them make the decision what to do with it when they go to the polls. At the very least, they will get the rest of the story that AHF and well paid propaganda shills won't tell them...and that might just make a difference come November.

Porn Panic 2012: A Primer On The Facts As Opposed To The Hype: Ernest Greene Redux (Via 2009 "Scare") -- Part 1

There has been certainly  a lot of confusion and throwing around of statistics and claims and counterclaims surrounding the upcoming November vote in Los Angeles County regarding the move to impose mandatory condoms and other such "barrier protections" on porn performers.

Proponents of the measure say that the existing testing regime using screening of performers and once-monthly (now twice-monthly) testing has been proven to be a failure due to back-to-back-to-back "outbreaks" of performers getting HIV, as well as an alleged "epidemic" of other STI's such as chlamydia, gonnorrhea, syphillis, Hepatitis B, Hepatatis C, and HPV, which they say are affecting the industry; and that only mandating condom usage will redress the problem and protect "worker safety". Proponents also cite the supposed benefits of mandating condom usage for porn performers in the general context of promoting  "safer sex" amongst the general population; intimating that since porn has a disproportional influence on the developing sexual habits of impressionable youth, it should be coerced by government fiat to promote such "safer sex" practices as a means of "mentoring" young people into more "responsible" practices.

While all those intentions may be based on well-meaning goals and incentives (and some may be based solely on simply taking out competition and privileging those more economically more able to profit from a condomized regime), opponents of the condom mandate like me have stated that the measure simply attacks a straw problem that does not exist, uses a nuclear bomb when a precise scapel would be more appropriate, denies the choices of the very performers they claim to want to protect, undercuts the very cause of  promoting "safer sex", and ultimately, decimates and violates the rights of innocent people who's only crime was to engage in sex in ways not approved by certain elitists.

There are other objections that have been raised to the LA County ordinance (and a similar law that was passed covering the City of Los Angeles), such as the fact that it would essentially intervene in even private, monogamous coupled affairs where filming their sex scenes for mere personal pleasure rather than profit could still require both the expensive purchase of a permit to even tape their lovemaking, and even require the use of "bloodborne pathogen protection" as well as condoms, even if the couple was certified to be STI-free and never engaged in risky behavior. Others will cover those objections in other venues.

What I intend to do here is to reset an earlier HIV-in-porn "panic" to reveal exactly how much this latest condom mandate campaign has become nothing much than the latest in a series of "sex moral panics" designed to exploit popular prejudices and assumptions about porn performers and sex workers and sexually active/assertive people in general to fuel sexually regressive and highly reactionary legislation.

The template I will use is an article that was posted here on this blog on June 14, 2009 by BPPA contributor/co-founder emeritus Ernest Greene (aka Ira Levine), recounting an earlier "panic" that took place at that time in which a performer was found to have tested positive for the HIV virus. The subsequent brohaha set the foundation for the ultimately successful campaign against the Adult Indistury Medical (AIM) Foundation, which until 2011 had been the principal agency for testing porn performers, as well as the ongoing campaign for the condom mandate. I will add relevant annotations to Ernest's commentary, as well as some context to the present day, as I go along.

It should be noted that at the time of the original article, Ernest served (as did his wife/partner, Nina Hartley) on the executive board of AIM, and was instrumental in the formation of the testing regime they used up to their untimely demise due to mainly the efforts of the AIDS Healthcare Foundation (AHF), the California state branch of the Occupatonal Safety and Health Administration (Cal-OSHA), and the Los Angeles County Department of Public Health Services (LACDPHS). These three organizations also happen to be the main proponents of and boosters for the condom mandate.

Latest HIV-in-Porn-Panic: Rumor Control Central Re-Opens for Business

As readers of this blog already know, a female porn performer tested positive for HIV earlier this month at the Los Angeles clinic of the Adult Industry Medical Health Care Foundation (AIM), of which I am chairman of the board emeritus after six terms as a board member, starting with the organization’s formation in 1997. Though I’ve given up blogging as a hobby, the sensationalistic press coverage by local media and irresponsible fear mongering by public officials and anti-porn partisans in the wake of this development cannot go unaddressed.

The current situation has long-term implications for public health and public policy reaching beyond the parochial concerns of the porn industry, those who support it and those who oppose it. The ghoulish glee, complete dishonesty and utter disregard for the potential consequences to actual sex-workers in the attempt to politicize a single, isolated episode with which rad-fems and self-styled porn experts have seized upon this thing is disgraceful and says much more about them than it does about us.

For those implications to be considered rationally, there must first be some clear-sighted recognition of the known facts of this particular case. I’ll try to provide them, and then I’ll offer my perspective on the spin they’ve been given and my own best assessment of the correct course of action for the industry itself and for the greater community of which it is a part. I do not pretend to objectivity in this matter. I don’t have that luxury. I make my living as a pornographer and I am married to an active performer exposed to the same risks as everyone else in the long-term talent pool here, where the majority of porn in sold in America is made.

"Here", of course, refers to California and the Los Angeles region, where indeed most porn videos are produced..although, secondary markets such as Las Vegas, San Francisco, and Miami are emerging as challengers.

For brevity's sake, I will skip over Ernest's recollection of the 2009 case in detail; you are perfectly free to link to the original article if you wish to reset that case. Instead, I will jump forward to the reaction to that episode.

The lies started, as they so often do these days, with unsubstantiated reports from remotely involved parties appearing on porn gossip and chat sites. Perhaps the most harmful of these lies was that the infected performer was given a false negative result from her June 4 test by personnel at AIM prior to working on June 5.

This didn’t happen. It couldn’t have because her results did not come back until June 6, as laboratory reports conclusively establish. While AIM’s testing protocols are not foolproof, as nothing wrought by human hands can be, clinic procedures absolutely forbid clinic staff from discussing pending test results with anyone, including those tested, until the lab reports are in. These rules were observed to the letter in this case.

Another false accusation spread around the ‘net claimed that AIM made no attempt to stop the performer from working while her test was still pending. AIM has no legal authority to forcibly prevent anyone from doing anything. However, the importance of voluntary compliance with AIM’s testing and quarantine procedures is well understood throughout the industry and when the positive results were verified, the infected performer’s contacts have honored AIM’s request to refrain from performing until all re-testing is completed. Again, that is how the system works, and it worked quickly and effectively this time as it has in the past.

If that reminds you of something, Clones, then you remember went down last year with yet another HIV "scare", where a performer in Florida appeared to have tested positive for HIV, only to find out that the source sample used for his original diagnosis was tainted. He was retested under a different regimen and found to be HIV negative. However, the nature of his original tests, as well as the rumor that a major production company had allegedly allowed him to perform scenes during the arbitration of his original tests, potentially "infecting" many others, let to widespread chaos and rumors running amok. It wasn't until the Free Speech Coalition, through their then newly formed Adult Performer Health and Safety Services (APHSS), officially released the itenerary and etology of the tests, and verified the false positive, that passions ultimately cooled..but not before AHF and Cal-OSHA and antiporn activists like fundamentalist Christian ex-porn starlet Shelley Lubben were able to exploit the situation to their own advantage and further boost the condom mandate campaign.

And speaking of AHF and Cal-OSHA and LADPHS...here's where they come into the picture.  Onwards, Mr. Levine...ahhh, I mean, Mr. Greene:

But vicious as these distortions of reality were, their sources were already well known for their hostility toward AIM’s voluntary harm-reduction approach and knowledgeable insiders viewed them with the skepticism these sources have richly earned by their past behavior.

It wasn’t until the Los Angeles Times, Los Angeles County health officer Dr. Jonathan Fielding, Cal-OSHA spokesman Dean Fryer and Aids Healthcare Foundation President Michael Weinstein got into the act that the bigger and much larger and more ominous falsehoods were put in general circulation.

Fielding is a long-time adversary of AIM’s whose department has a history of harassing and defaming the organization dating to well before the 2004 cases. Fielding’s hirelings have attempted to obtain confidential medical records of AIM’s clients, made threatening calls to AIM clients in efforts to intimidate them into giving information his department has no legal right to collect and publicly accused AIM of “stonewalling” his department’s attempts to investigate STI transmissions in the industry, though he knows as well as we do that California law is extremely specific regarding what we must report to government agencies and what we are forbidden to report to anyone. Members of Fielding’s staff have heckled AIM board members, myself included, from the floor at public forums unrelated to his agency’s mission and Fielding himself has lied to my face in his office in front of two other AIM board members and two members of his own staff regarding his intended recommendations to the state legislature prior to the investigative hearing into the 2004 cases.

And yes, that would be the same Jonathan Fielding that is currently setting the terms of enforcement for the upcoming LA County condom mandate, should the voters of LA County pass this initative. Government bureaucracy is so much fun when you can play both sides of the street and get paid, isn't it??

But none of Fielding’s cynical machinations sinks to the level of his false assertion, trumpeted by The Times, that AIM has “concealed” an additional 16 HIV infections in the industry since 2004. In fact, eleven of those cases involved male performers in gay porn who are not part of AIM’s client base and who do not test with AIM and four were private citizens not affiliated with porn who sought testing at AIM for personal reasons. As required by law, all HIV infections detected by AIM were reported to Fielding’s department, which is how he comes to know about them, but were not disclosed to AIM’s heterosexual porn industry clients because they did not involve het porn in any way. And yet The Times reported this deliberate and heinous distortion of the truth under the blaring headline: “More Porn HIV Cases Disclosed.” In point of fact, there is no way AIM, Fielding or anyone else can know that the cases involving the gay performers were porn-related, as AIM does not monitor that population. But then again, The Times also characterizes mainstream porn as a $12 billion dollar a year industry, an unsourced figure frequently repeated in mainstream media and universally scorned as a ridiculous exaggeration by industry insiders.

 While the LA Times was ultimately forced to retract that stat back then, it remains a central, core foundation of the condom mandate's proponents' ideological offensive...though the exact number sems to expand depending on who's blasting the mic at the moment. "18?? Wait, Weinstein/AHF/Cal-OSHA says 24!!  No, he's wrong..it's actuall 36, Shelley sezs!!" And, of course, I won't even get you started on the outrageous claims of how much porn actually sells...since any number from $800 million to $88 BILLION can be thrown around.

Also, the exclusion of gay performers having contracted HIV, and the radically different system that is being employed by the gay side of the porn industry does have some major bearing on why some folks are so hot on the idea of imposing condoms and wrecking the existing system of testing and screening. But, I'm getting a bit ahead of myself; you'll see that anon.

Meanwhile, Cal-OSHA’s Fryer alleges in the same story that “AIM Healthcare has never been cooperative with us and our investigations,” because AIM has obeyed the law and refused to give out client information to agencies not entitled to said information.

And then there’s AHF’s Weinstein, who has characterized the porn industry overall as “a poster-child for heterosexual HIV transmission” and proclaimed that: “This industry screams for regulation. Cal-OSHA needs to require condoms be used in any film. Yesterday.” Weinstein has organized picketing in front of Larry Flynt’s offices to demand that the straight porn industry adopt mandatory condom use and has refused to meet with industry representatives to discuss the reasoning behind the current standards. He is what is colloquially known as a hothead.  

A "hothead" who also happens to be very successful at shaking down major companies and government for lots and lots ANNNNNNNND LOTZ of cash, as well as incentizing his formula of condoms and treatment in lieu of other means of protection, even if that stand in the way of actual solutions. Not to mention, a nice killing for Lifestyles and Trojan and Durex.

And as for the "mentoring" aspects of the condom mandate??

All these individuals, and a few converts they’ve made at the margins of the industry, support a truly mad plan by Fielding’s deputy Dr. Peter Kerndt to implement state-legislated regulations requiring condom use throughout the industry that would make it illegal to distribute sexually explicit materials created without the use of condoms, even though Kerndt himself admits that digital post production effects could theoretically render it impossible to determine after the fact whether condoms were used or not.

If these individuals were mainly concerned with the health and safety of performers, their views might at least be worth a second hearing, and their methods, while still questionable, would at least be well meant if misguided.

 And here is where the game is given away.  (Bolded emphasis added by me.)

But their real objective has nothing to do with performer safety and everything to do with porn content, which they regard as setting a bad example to viewers following safer sex precautions in the viewers’ private lives. Kerndt makes his priorities crystal clear in his 2007 jeremiad published by the Public Library of Science: “The portrayal of unsafe sex in adult films may also influence viewer behavior. In the same way that images of smoking in films romanticize tobacco use, viewers of these adult films may idealize unprotected sex. The increasingly high-risk sexual behavior viewed by large audiences on television and the Internet could decrease condom use. Requiring condoms may influence viewers to see them as normative or even sexually appealing, and devalue unsafe sex. With the growing accessibility of adult film to mainstream America, portrayals of condom use onscreen could increase condom use among viewers, thereby promoting public health.”

Riiiiiiiight. Because "unsafe sex use" was absolutely no problem before porn came along, and because only porn performers and people taping their sex habits for personal pleasure are/were the ones spreading all kinds of nasty STI's and HIV into the civilian world.  As if the HIV rate of transmission didn't really explode until the VCR, the Internet, the camcorder, and the 3G/4G digital phone allowed people to sext and flash their naughty bits and pass bareback porn betwen each other in an instant. And, of course, people who actually HAVE "unsafe sex" in actuality have been doing so without the aid of porn for centuries, and yet it seems that they have far less of a risk than the gay male porn population, which has had the unmitigated hammer drop on them due to the nature of the HIV virus..and whom also happens to enforce mandatory condom usage in spite of that.

But, if it makes "safer sex" hotter and more sellable to the public, nothing much else matters, I guess. All personal freedoms and choices pale before "protecting the public".

This is basically Weinstein’s line as well. They want to empower the state to punish porn producers for not requiring condom use because they regard the depiction of sex without barrier protections as unhealthy viewing for the audience.

Unfortunately, in the service of that goal, they’re quite prepared to put at risk the performers they claim to be protecting.

The actual method to that madness, I will get to in Part 2 of this essay.

 

Porn Panic 2012: The "Weinstein-Lubben Model" Expanded To Homemade Webcammers; Plus, AHF Volunteers To Become The Official "Condom Nazis"

Just in case you thought that it couldn't get any worse, it gets much worse.

Mark Kernes has now posted at AVN.com his recounting of yesterday's meeting of the LA City Council committee involved in enforcing the condom mandate law, and it confirms two disturbing developments that I first mentioned on my update to my original post.

First off...there is this exchange that is documented between Immoral Productions chief "Porno Dan" Leal and  FilmLA VP Todd Lindren regarding the scope of the new law regarding personal webcamming.  Remember that Leal's company was paid a surprise visit by LAPD Vice the night before, and cited for not having a valid permit under the new law.

The first speaker was Immoral Productions owner Dan "Porno Dan" Leal, who informed the Group that one of his independent contractors had been given a citation by one of the eight members of LAPD's Vice Division who arrived at the location, for shooting a live webcam show without a permit. Leal explained that since the citation has been issued because the show, which was not yet under way when the police arrived, was being done for commercial profit or gain, he surmised that every webcam performer in the city would not be required to get a permit from FilmLA, and asked the FilmLA representatives if that was correct?

"It has been consistent that any commercial production, including webcasts, needs a permit," responded FilmLA's Lindgren.

"So any webcam show shot by anyone in the city of Los Angeles will now need a permit, is that correct?" Leal asked.

"Has always needed a permit, right," Lindgren corrected him.

"Ergo, any married couple shooting in their house, who's shooting a webcam show for profit or gain, which by definition would be every single person that shoots webcam, would now need a permit, is that correct?" Leal pressed.

"Under the city ordinance, if it's for commercial purpose, it needs a permit," Lindgren stated.

"And therefore, they would need condoms under the new regulation, is that correct, that logic?" Leal continued.

"We're in the process of developing that specific—and I can't answer that question," Lindgren responded.

At that point, Santana cut Leal off, stating that the comment period wasn't supposed to include a question-and-answer dialog with Group members, leaving Leal to finish by stating, "We will be happy to comply with whatever the city decides to do."

In other words, it isn't just about intimidating the big studios into wrapping up anymore; it's about forcing condoms on everyone who does any form of adult sexual media for profit.

Indeed, it isn't even about condoms, come to think of it...since the new law now extends the requirement of a permit to include even homemade adult webcamming -- and remember, the new Cal-OSHA regs could potentially require "barrier protection" (read, dental dams and gloves) for girl-girl and even solo scenes) as a means of "protection" -- that means that ANYONE who does an adult webcam in the city of LA is now liable to be required to apply for a permit, or face stiff fines and even jail time.

Now, whether or not the city has the means or the will to enforce this equally on all is a legitimate issue, but the fact remains that the city now has that hammer with which they can stomp anyone not meeting Mike Weinstein's or Cal-OSHA's rigid standards of "protection".

And then, there is the real issue with the collection of such information in the filing and handling of permits. What about the risk of a potential permitter having their information exposed and used as blackmail against them, or exploited by antiporn groups wanting to banish them "for the sake of the children"?? And, what about the very real threat of public exposure of private cammers as a means of shaming them, or outing them to their families?

Anyone who doesn't see the potential mass violation of basic privacy and sexual liberties inherent in this law is either dense or blind. But, hey, they're all just ignorant sluts, and this is for their own good and protection, so who cares??

Of course, the folks who put forth this law in the first place will always complain that even that is not enough, and will volunteer their services to drop the hammer down that much stronger. Witness the testimony of the only AHF representative at this meeting, Mark McGrath, as documented by Kernes:

AIDS Healthcare Foundation's (AHF) Mark Roy McGrath spoke next, and began by claiming that during the investigation of the  2010 Derrick Burts HIV infection, the LA County Department of Public Health had no problem identifying "all the production companies, all the secondary producers... in quick, short order," charging that those companies "continue to violate California law, they continue to act as outlaw entities, and we feel that... it's time that this industry act with legal responsibility and show a modicum of corporate citizenship."

McGrath claimed that the law "does not distinguish between content, but on acts," adding that, "they can create any content they want that's simulated. This law is specifically looking at infectious disease transmission and exposure." (Of course, most adult content fans won't buy simulated sex, but that's not something that worries McGrath.)

While noting that neither he nor AHF is "happy with the draft language," he asked, "How is it going to be logged? How are we going to conduct these investigations? If the fire department and police camn't do it, where are we going to do a Request for Proposal?"

Of course, several prominent adult industry members have suspected all along that part of the reason AHF got the new ordinance put on the books was to eventually offer its services to the city as the only official "condom inspectors," so it will be interesting to see which entities respond to McGrath's suggested RFP.

First off...I thought that the 2010 outbreak featuring Derrick Burts took place in Florida, right?? And that there was really no investigation by either FilmLA or Cal-OSHA, but from the LA County Department of Public Health, which AHF had already dismissed as "stonewalling" to begin with??  (And, dare I mention that even Burts admitted that he was infected in a shoot where condoms were already used??)

And of course, McGrath would say that it's only about acts and that if producers wanted to show authenticity, then they could always rely on simulated sex. Yeah, right...like everyone's going to move over to late night Showtime or Cinemax to get their fix of losing bareback sex.

But, it's the last sentence that is the most important: since AHF obviously doesn't trust the LA Vice squad to enforce their condom mandate the way they want, they wouldn't mind getting paid by the city to do the enforcement themselves.

WOW...outsourcing the enforcement of a public law to a private for-profit entity....that'll go well, and won't be abused. Like bloody hell, it won't. Ask the victims of the original Porn Wikileaks.

To put it simply, this is the Swedish Model for sex work applied to porn, shifted a tad, and then jacked up to heights unknown. Julie Bindel and Gail Dines would proudly support this...and I'm sure that Gail will give her blessings next chance she gets to post a CounterPunch essay. Only thing missing is the "Real Men Don't Buy Bareback Porn" ads and celeb endorsements.

Neoliberal antisex censorship. Just like right-wing fundamentalist antisex censorship....but neoliberal.

Seriously, we have GOT to fight this. To the fucking WALL.

Porn Panic 2011 Update: BREAKING: AHF Hypocrisy Exposed By TheSword.com: Push Condom Mandate On Others, But Sell Bareback Gay Porn At Home. Niiiiiice!!!

Oh, My. Goodness.

If this turns out to be true, it completely changes the game on the condom mandate.

Apparently, Mike Weinstein's AIDS Healthcare Foundation has just a little bit of a problem with walking their talk about forcing condom usage in porn. As in, making money off the sime bareback they would outlaw.

No, I don't just mean making money off banning it, I mean making money off of it directly..by SELLING it.

This story originated over at TheSword.com, a very respected gay male site; I'll just quote them. (WARNING: link to article which contains NSFW images)

Why Is Michael Weinstein’s AIDS Healthcare Foundation Selling Bareback Porn?

AIDS Healthcare Foundation’s Michael Weinstein, a fierce proponent of condom usage in porn and the leading force behind ongoing efforts to make condom use mandatory in California porn, owns and operates nearly two dozen “Out of the Closet” stores, including the recently opened Wilton Manors, Florida location. In addition to used clothes and furniture, this store is also home to an ‘AHF Pharmacy.’ Also available at Michael Weinstein’s thrift store? Used bareback porn.

When the store opened in 2008, Weinstein announced that “Ninety-six cents of every dollar raised through the Wilton Manors store and through ‘AHF Pharmacy’ will benefit AIDS Healthcare Foundation’s HIV/AIDS prevention and education programs in Broward County and statewide,” so selling bareback movies in that same store would be an oddly counterintuitive move on the part of an organization whose sole objective is to prevent the spread of HIV. And yet, here they are.

The bareback movies currently on sale at Michael Weinstein’s Out of the Closet in Wilton Manors include Bareback Joy Riders, Bareback Sailor Pimp, and Cum Inside Me.

This photo of bareback porn currently on sale at Out of the Closet (note: customers have to ask a clerk to view the films, which are typically kept behind a counter) was taken by Out of the Closet employee Ryan Dixon (a.k.a. Kameron Scott), a former adult performer living with HIV. Dixon took issue with AHF/Out of the Closet selling the films, so he brought them–as well as the subject of bareback porn and bareback performers–to the attention of Out of the Closet’s district manager, Matt Lamariana, who rebuffed Dixon, allegedly telling him, “Who cares?”

Yesterday, Dixon quit his job at Out Of The Closet, citing the bareback titles and Lamariana’s attitude. Excerpts from Dixon’s letter of resignation:

This letter is being written to inform you that the weeks of April 10, 2011 and April 17, 2011 will be my final two weeks with the AIDS Healthcare Foundation as a cashier at Out of the Closet. I have made this decision based on my experiences working at your store, observations about operations I have made and personal beliefs which I cannot compromise.

[...]

Out of the Closet is supposed to be a fundraiser, but to sell bareback porn movies behind the counter just to make money makes me sick. I confronted a fellow employee about it, then the assistant manager, and finally my store manager about not feeling right about selling them because of what this company is supposed to be portraying. When Matt was asked about it, he looked at me, shrugged, and said, “Who cares? It’s been made and they’re probably already dead from whatever they caught.”

As a former adult model living with HIV, that comment was the last straw for me. Are we not the same company that protests studios that make videos without condoms, but yet it’s ok to sell their movies because it’s ‘already made’?

A press rep for AHF/Out of the Closet confirmed to The Sword that porn is sold in some store locations, but couldn’t comment on Dixon’s resignation or the sale of bareback porn. Additional calls to AHF/Out of the Closet in Florida have not been returned.

The Free Speech Coalition’s Diane Duke, a frequent opponent of Weinstein and AHF in the ongoing battle of condoms in porn, told me that AHF’s campaign against the porn industry has never been about the safety of adult performers.

“AHF’s activities have always been about gaining power, fame and fortune,” said Duke. “This is the kind of train wreck that happens when a nonprofit loses site of its mission and follows the money.”

Now, understand that TheSword.com's stated position is in favor of the condom mandate and for ultimately banning bareback gay porn as a enabler of spreading STI's and HIV. So, it's not as if they're necessarily friends of the industry.

On the other hand, though...for all of Mike Wenstein's pontifications about how only condoms can effectively protect performers from HIV, he is, first and foremost, a sucker for raising money...and I guess that he thought that pimping bareback gay porn in Florida wouldn't get him caught in LA.

All I want to know about this is....does Ministeress Lubben know about this??  And if she did, then why hasn't she broken off AHF as violating her "Christian" ethics??  Or...is she a private fan of gay bareback, too??

We will be following this breaking story as it happens, of course.

Update:  Oh, nice....Mark Kernes at AVN just discovered this juicy hanging slider, and just hit it out of the park. His article for AVN is here.