Page 67 - AVN October 2016

by ERICPAULLEUE
Why The Battle Doesn’t Stop at California
affect California companies. For those who have already moved production out-of-state, to Vegas or Phoenix or Miami or Mexico or Barcelona, this may be a
A lot of people in our industry think that California’s problems—a dangerous ballot initiative, and industry-ending workplace safety regulation—will only
comforting thought. Unfortunately, it’s not true.
The twin initiatives we face in California today both have serious repercussions outside the state, and it’s crucial that we fight them here—in the place
we’re politically strongest—this year. This has been a long fight, but with a Cal/OSHA victory, we have a chance to finish the battle once and for all. However, if we let
California fall, Prop 60 will not only destroy California production, it will create costly liabilities for every adult company—no matter where they are.
For those who haven’t been involved in the fight so far, here’s a short guide to Prop 60 and the Cal/OSHA regulations—and how what happens in Sacramento this
year will affect producers across the globe.
We can defeat Prop 60, but not if we don’t have the resources
to get the word out.
—Eric Paul Leue, executive director, Free Speech Coalition
Proposition 60
Proposition 60 is a measure on the November
ballot in California that goes far beyond previous
legislative attempts to mandate condoms in adult
films. It permits any resident of the state to sue
anyone who is deemed to have a “financial interest”
in the production—including, but not limited to
the producer, performer, agent, distributor, website
operator, cam site, affiliate or retailer. It also imposes
the same liability against anyone who has ‘aided
and abetted’ the production or distribution, which
by California law includes payment processors and
merchant services. Anyone who makes money from
the sale of an adult film without condoms
can be sued by anyone in the state of California
with a laptop.
Of course, the measure specifies that only
California productions are liable. The problem?
Few people watching an adult film know where it
was produced, which means that most of you will
be facing lawsuits, no matter where you shot it. If
you can show you produce out of state, you might
eventually defeat such a suit—but not before hiring
counsel, filing responses, and showing up to court.
(Unfortunately, these are not dismissible cases at the
demurrer stage, meaning that even if you win, you’re
looking at an estimated $25K just to have the suit
dismissed.)
And even if you use condoms, the initiative
includes a “rebuttable presumption”—meaning that
if they can’t be seen in any given shot, you’ll have
to prove in court that they were used. Can’t see
the condom in a trailer? A promotional GIF? A box
cover? All fall under the initiatives definition of an
“adult production.” Get ready to hire counsel.
Further, Proposition 60 gives anyone who brings
a successful suit a portion of the fine levied—and
makes you pay their legal bills—so there’s a profit
motive that will move this beyond Michael Weinstein
and the anti-porners, and into the hands of for-profit
legal firms. We’re looking at potentially thousands
of lawsuits against producers and performers and
distributors in the first few months after it’s passed.
Several prominent producers have discussed
blocking IPs from California entirely, calculating that
the loss of the California market is less than the cost
of endless litigation.
This is a frightening prospect, and a dangerous
precedent. It’s meant to help the state enforce
Cal/OSHA regulations, which are being developed
simultaneously, and go even further.
Cal/OSHA
Cal/OSHA is charged with protecting workplace
safety in California—but its influence goes far beyond
the Golden State.
Last year, Cal/OSHA attempted to write specific
regulations for the adult industry on AHF’s urging.
Predictably, the results were ludicrous. Interpreting a
federal “universal precaution” standard, the
Cal/OSHA Division drafted regulations that
banned fluids like semen, pre-ejaculate and vaginal
secretions from having any contact with any mucous
membrane (think eyes, nose, mouth, genitals). That
meant condoms for anal, vaginal and oral sex. Eye
protection for facials (squirting and cum shots are
unpredictable). Latex “dental dams” for oral sex, even
girl-girl.
The press had a field day, but Cal/OSHA did not.
Prompted by the AIDS Healthcare Foundation,
Cal/OSHA has repeatedly tried to sideline objections
of performers and producers. We defeated the draft
regulations, and forced them to give performers and
producers a place at the table, but AHF is geared up
for battle—and they routinely outspend us 10-to-1.
Should AHF’s regulations pass, it will effectively
outlaw most adult production in California. And
coupled with the enforcement mechanism of
Prop 60, complaints will no longer be limited to those
on Michael Weinstein’s hit list.
But even outside the state, California Cal/OSHA
regulations would likely be the template used for
other states, and perhaps even a federal guideline. On
the other hand, if we’re able to include a progressive
protocol that puts performers in control, that will be
the standard likely adopted outside the state as well.
While it has taken nearly seven years to get to this
point, a Cal/OSHA victory for AHF here would be
more easily replicated in other states, and in much
shorter amount of time—a domino effect for other
states. It’s crucial that we establish the standard on
our terms. For the industry to thrive, we must be
legal, stable and above ground.
The Bottom Line
We have had some incredible victories already, and
momentum is on our side. In February, we were able
to stop the draft ‘condom and goggle’ regulations at
Cal/OSHA from becoming effective, and in August,
we stopped AHF from hijacking the process.
In the past 12 months, the industry has seen both
Measure B and 2257 effectively neutered.
And we’ve gotten all major political parties—
Republican, Democrat and Libertarian—to oppose
Prop 60. We’ve had strong opposition from editorial
boards of leading newspapers, like the San Francisco
Chronicle and the San Jose Mercury News. We have a list
of opposition to the Proposition that outguns AHF,
and more are joining our side every day.
We can defeat Prop 60, but not if we don’t have the
resources to get the word out. Unlike AHF, we don’t
have millions of dollars to spend on ads—a crucial
driver in ballot initiatives like Prop 60—or lobbying
Cal/OSHA. We face a tremendous deficit.
In the next few months, we have twin challenges
that Board Chair Jeffrey Douglas has called “the
gravest threat to the adult industry since the Nixon
administration.” We are lean, we are tough, and we
are smart, but we need your financial help to carry it
off.
No matter where you are, no matter where you
produce, the Battle of California affects you. I ask that
you join us at Free Speech Coalition and help us stop
it here, before the War on Porn spills across any more
borders.
Eric Paul Leue is the executive director of Free Speech
Coalition.
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