Page 34 - AVN January 2016

LEGAL NEWS
LEGALESE | | By Clyde DeWitt
(Continued from page 32)
During the ’70s and early ’80s, obscenity
prosecutions were hit-and-miss terrorist
attacks on the First Amendment. One of
the more interesting ones was a federal
prosecution called MiPorn. In the late ’70s,
the feds went to the “Consumer Software”
component of the Consumer Electronics
Show (CES) in Las Vegas. Back in those days,
what is now the Adult Entertainment Expo
was a part of the CES. Conventioneers whose
wives thought they were out selling transistor
radios in fact were checking out porn stars.
So, what the FBI did was to go to Vegas to
check out CES to amass information about
the adult video producers and distributors.
Armed with what they learned there, they
set up an undercover operation in Miami,
purchasing porn from all of the distributors
that they had learned about. The amazing
result, which ultimately was found to be
out of whack with legal reality, was a single
indictment against all of the distributors,
claiming a colossal nationwide conspiracy to
distribute obscene material, claiming CES to
be the hub of the conspiracy. It really didn’t
get very far.
The next political stunt was connected with
President Reagan’s 1984 landslide reelection.
Owing a big debt to the Evangelicals
(“Religious Right” in those days’ parlance),
another commission was created, this
one in the image of the 1950-51 Kefauver
Commission hearings on organized crime
and the 1954 Army-McCarthy hearings on
Communism. What became known as the
“Meese Commission”—named after Attorney
General Edwin Meese III who was a buzz
saw against pornography—was a group of
clerics, conservative politicians, psychologists
and even a judge that was totally stacked as
result-oriented. The Meese Commission’s
report offered scores of recommendations on
how to deal with the supposed problem of
pornography. What happened after that until
Bill Clinton kicked the Republicans out has
been the subject of other columns.
Around that time, though, there was
another stunt that matches what Utah has
done. Two radical feminists, preppie scholar
Catharine MacKinnon and her cheerleader,
NFL-tackle-sized Andrea Dworkin, decided
to attempt to define pornography as “graphic
sexually explicit subordination of women.”
That was an attempted end-run around the
First Amendment, much akin to what Utah
recently has done.
This feminist duo managed to sell the
city of Indianapolis, Indiana on enacting an
ordinance embracing their concept. Because
pornography was bad for women, it could be
PAC Formed
to Fight
Condom
Measure
illegal, the First Amendment notwithstanding,
so they claimed. Nope. American Booksellers
Ass’n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir.
1985), aff’d, 475 U.S. 1001 (1986). The
Seventh Circuit’s opinion’s first paragraph
said it all:
“The City’s definition of ‘pornography’ is
considerably different from ‘obscenity,’ which
the Supreme Court has held is not protected
by the First Amendment.”
That court fight cost Indy a pretty penny.
Now, Utah has tried another, comparable
end-run. Utah’s slant on this is that
“pornography is creating a public health
A new political action committee sponsored in part by the Free
crisis.” After a couple of pages of “whereas”
Speech Coalition (FSC) has formed to combat the measure set to
clauses, the Utah legislature concluded:
appear on California’s November presidential ballot that would
“NOW, THEREFORE, BE IT RESOLVED
mandate the use of condoms in adult productions throughout the
that the Legislature of the state of Utah, the
state.
Governor concurring therein, recognizes that
Dubbed Californians Against Worker Harassment, the PAC is
pornography is a public health hazard leading
funded by an alliance of adult performers, businesses and public
to a broad spectrum of individual and public
health advocates, and will be chaired by FSC executive director
health impacts and societal harms.
Eric Paul Leue.
“BE IT FURTHER RESOLVED that the
Stated committee spokesperson Mike Stabile, “This initiative
Legislature and the Governor recognize the
would grant any private citizen of California the power to sue
need for education, prevention, research, and
a worker, even an injured worker, in the adult entertainment
policy change at the community and societal
industry, simply because they don’t agree with how that worker
level in order to address the pornography
does their job. It opens up the door to extortion and harassment
epidemic that is harming the people of our
of a predominantly female performer base and small business
state and nation.”
owners by those outside the industry.”
Now, you need to give the Utah legislature
The proposed law would mandate that use of condoms be
some credit here. When Indianapolis got
verifiable in all adult productions across all technology platforms,
sucked in by the Dworkin-MacKinnon
including unrated independent films. If the condom is not visible
nonsense, it set itself up for the court
a performer could be sued by any California citizen. Performer
challenge noted above, along with a hefty
safety is currently regulated by Cal/OSHA, and performers are
attorneys’ fees judgment. What Utah did
tested every 14 days for a full slate of STIs, a protocol which has
was just a resolution. Unlike ordinances,
prevented on-set transmission of HIV in California for over a
resolutions do not threaten prosecution so,
decade.
therefore, are not so easily subject to legal
challenges.
If the Utah resolution had been enacted
into a statute, it likely would fare no better
which would open the door
than the Dworkin-MacKinnon absurdity. In
recent years, the current Supreme Court has
”Adult workers oppose the law,
to stalkers
been disinclined to add any new exceptions to
Adult workers have been vocal in their opposition to the law,
First Amendment speech protection, squarely
which would remove their own right of choice pertaining to
rejecting three attempts: Ashcroft v. Free Speech
the use of condoms, and open the door to stalkers and serial
Coalition, 535 U.S. 234 (2002) (Simulated
harassers, a serious issue for many performers. Many also fear
child pornography.); United States v. Stevens,
that the initiative will further drive a legal industry underground,
559 U.S. 460 (2010) (Dogfight/crush videos.);
leaving them less protected.
Brown v. Entertainment Merchants Association,
The Attorney General estimates the “California Condoms in
564 U.S. ___, 131 S. Ct. 2729 (2011) (Violent
Pornographic Films” ballot initiative will cost tens of millions
video games accessible to minors.).
annually in lost tax revenue and administration costs. A similar
Justice Scalia’s death and his potential
bill in Los Angeles in 2012 resulted in a 95 percent drop in
replacement, whoever and whenever that may
permits for adult production in L.A. County, before being ruled
unenforceable.
be, cannot be expected to change any of that.
Justice Scalia’s replacement could not be more
“This initiative is dangerous to adult performers, sets a
conservative; so a Republican justice would
precedent for other workers to be sued, and will force tax
not change the Court’s thinking. A more
revenues and jobs out of state,” Stabile said. “We should not
liberal justice, of course, can be expected to be
allow adult performers to be harassed simply because someone
more speech-friendly.
doesn’t like what they do. California law should protect workers
from harassment, not sanction it.”
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