A Copy of the Response to the Complaint Sent to OSHA re Kink.com

66 Responses

1. A Copy of the Response to the Complaint Sent to OSHA re http://t.co/vepvZlDIEt http://t.co/OnBRSsxNxC

2. “POST EXPOSURE EVALUAION AND FOLLOW UP”

   This is the single most important thing here, and OSHA has been dodging, and ignoring this part of the regulation, as it opens a whole new can of worms.

   Mike, you need to notify the person who filed this complaint and tell him to contact the OSHA person named and ask why they are not following up on this part of the complaint.

   You see, when the employer is required to provide testing, and a person tests positive for something, then you have all the proof necessary that someone was exposed ON SET, the employer is responsible for all medical treatment.

   This must be followed up. THIS IS HOW THE COSTS THAT SHOULD BE COVERED BY EMPLOYERS WILL BE ENFORCED, but OSHA has been dodging this for years……. Mike, advise this guy to follow up on this issue,,,it will be a game changer.

3. Go get em’ Mike. They need to start complying with the laws or there is going to be more outbreaks and more FEMALE talent exposed and ill with all those fucking nasty diseases.

   Porners need to start fucking taking care of business and stop having those pieces of shit talent agents push there talent around and try to dictate to them like they own them.

   Porn is just about dead as a nail and if not just about gone. They might need to move the untested and non condom shoots to Turkey or some other European country with all those diseased out male talent that are using depressants for std’s and HIV.
   I am glad I ain’t working in that shit hole business. Too bad the real Mafia isn’t running things. There would be some dead motherfuckers at those agencies and porn companies.

4. The violation that stuck out to me was exposure to blood and “other potentially infectious material.” This is the one that should concern pornographers the most because here is the list of materials that fall under that umbrella:

   •”Other Potentially Infectious Materials” include: semen, vaginal secretions, cerebrospinal fluid, synovial fluid, pleural fluid, pericardial fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, any body fluid that is visibly contaminated with blood, all body fluids in situations where it is difficult or impossible to differentiate between body fluids.”

   Note that semen and vaginal secretions fall under the umbrella plus the catchall “all body fluids in situations where it is difficult or impossible to differentiate between body fluids.”

   Feces, urine and vomit also fall under biologicals that employees need to be protected from while at work.

   So ………. you potentially eliminate facials, open mouth cum shots and swallowing, cream pies, DP, ass-to-mouth, ass licking, squirting, golden showers, and whatever that vomit fetish thing is.

5. RT @MikeSouth1226: A Copy of the Response to the Complaint Sent to OSHA re http://t.co/vepvZlDIEt http://t.co/OnBRSsxNxC

6. I see what youre saying BT but its what the regulations call for AFTER the exposure that OSHA has been dodging for years. 5193 states that after an exposure the employer must pay for testing, and any treatment for exposed individuals.

   While this complaint indcluded this,,,the actual citations did not, and never have any past citations included these violations. When I asked this very same question at an OSHA meeting Deb Gold called for a lunch break immedeately after I asked the question. When I returned to the building after the lunch break I was met by a security officer who told me I would be arrested for trespassing if I entered the building(220 S losangeles st.) Of course they never adressed the question of why they are choosing to not enforce this part of the statute.

7. The statue doesnt eliminate those acts,,,it calls for action to be taken after they occur.

   This is why the ‘bakery industry’ has a variance regarding the exteme heat that employees are subject to in the course of their regular work…You can bake bread in industrial ovens without people being exposed to extreme heat, so they allow employees to be exposed, but must take precaution, and must take steps afterwards to ensure nobody was hurt in any way.

   VIVID applied for a variance a few years ago, but when they were told they would be required to pay for testing and any treatment they withdrew the application.

8. Jilted: Understood. However, note the top of the report:

   “Employees working in an unsafe and unhealthy working environment.
   Employees exposed to blood and Other Potentially Infectious Material (OPIM) without required training and protection, including condoms.”

   So one of the violations that contributed to working in an unsafe and unhealthy working environment – that is the violation – was exposure to bodily fluids and other infectious materials without protection, including condoms.

   To me, that says: You can’t expose employees to infectious materials. If so, that would prevent removing a condom for a cum shot. Now, agreed that as with the bakery industry, there could be a variance for the industry if the industry applies for one.

   Here’s why I think OSHA is porn’s biggest threat. As you know, you can have a stricter than federal guidelines policy, but a state cannot have a policy that is less strict than the federal guidelines. The guidelines around bloodborne pathogens and other infectious materials is pretty clear – so it would apply to all locales.

   Which means ….. if the condom law is upheld and porn says, we’ll just pack up our tents and take our circus elsewhere, they may get a locale that isn’t going to pass or enforce a condom mandate. But, OSHA can still enforce OSHA regulations everywhere. If porn is now in OSHA’s target, I don’t think they say, ah, what the heck if porn goes to Las Vegas or Miami in a big way.

   Similarly, a locale may ignore one or two porn studios, but they’re not going to ignore the whole of the Valley relocating to South Beach.

   OSHA is porn’s biggest threat.

9. The OSHA regulations talk about exposure to ;mucous membranes, and broken skin. Just like the bakery variance,,,that is why OSHA offers the variance option, because they recognize that some jobs cannot avoid the exposures, and OSHA offers a remedy for that,,it is just the adult industry does not like the part of the remedy that makes employers PAY for those remedies, like the bakery employers do.

10. “200997732” complaint number was just one of seven included in the 11 violations citation sent to Kink. Of those seven only five were associated with the three posted inspection records I have yet to hear back about.

    Now for any naysayers who think I wasn’t stonewalled by Clement Hseih when I called on February 11th and 12th look at the date of this letter February 12th…..I didn’t see purple Martians or dream UFO’s when Hseih pulled the ole punt & shuffle …let me put you on speaker phone so my hands are free to take those numbers…then directed me to the Public Information Office instead of using those free hands to get the numbers….if he doesn’t take the numbers he doesn’t have to provide info.

    Now let me explain why I’m so pissed about this…government transparency is equivalent to my individual right to freedom of speech as well as privacy. Too many companies & entities have corrupted government agencies/employees into hiding “public information” regarding their activities thus thwarting mine and others ability to use public information to make informed choices. When a company or entity is allowed to have factual public information removed because they feel it might be prejudicial to their enterprise they are given a stronger voice that effectively drowns the rights of individuals.

    Companies/entities are routinely invading the individual right to privacy and freedom of speech by asserting government interference in the right of free association. I contend that the individuals rights to privacy, speech and association thwarted by a Company/entity is no less intrusive or chilling than governmental interference.

11. I’m not an expert on this, so I’m not arguing the point. But, it strikes me that there’s a difference between exposure to injury – I could get burned, even seriously burned – and exposure to a potentially chronic or even fatal disease, especially when the exposure is preventable. OSHA may not make a distinction – I really don’t know and am just speculating – but they seem very different to me as a lay observer.

12. You are correct BT. Exposure, and injury are seperate issues. When it comes to BBP there is no mention of infection or illness in the 5193 statute, it is all about exposure to the OPIM.

    Not all exposures need to be reported, but they do need to be recorded by the company, usually on what is called the Log300 form. If an exposure is serious enough to be considered likely to spread a disease then that must be reported to OSHA. This is another part of the statue that OSHA does has not been enforcing, why, I dont know.

    Injuries must also be recorded, and if serious enough reported.

13. @BT

    Shhh don’t tell the lawyers but OSHA regulations as well as several other Federal regulatory agencies are required to write their policies so that we unedumecated dumber than a box of rocks folk can get a grip on what they mean. Can’t wait to see what you come up with on measure B.

14. Measure B is entirely in the hands of the courts now. Around summer time, we’ll begin to see what is the next step. But OSHA is the bigger threat.

15. Yep…screwing with OSHA can be messier than losing an open bottle of lube in bed 😉

    IMO OSHA has been playing neutral between the industry and AHF but that will change with actual participant complaints resulting in citations. The cost of defending and appealing citations is more of a threat than OSHA fines. Theres also the threat of arguments used to defend and appeal OSHA being used against the industry in a civil suit to prove negligence. To me that’s where it can get really ugly.

16. There will definitely be more steps to measure B. The industry has too much of a vested interest in winning. Meanwhile the voter groups they pissed off by moving it to the Federal venue where they had no party standing aren’t ready to let it go either.

17. Ignorance is a bad beast. First: Turkey is not in Europe. Second: If i showed you the testing system we have in Spain since years as adult workers, you would think you’re living in a third world country. Third: the incidence pro-capite of HIV in the US is 300% bigger than in Europe. To give you an example, in New York (population 9 millions) there are approx 130k living with hiv, while in the whole Germany (population 82 millions) there are 60k living with HIV. US: 1.4M estimated people living with hiv; Europe: 900k with double the population of the US.

    Said this, you all talk about safety, condoms, plastic gloves and stuff, but i never hear a word about the appalling way of dealing with testing on socal sets. I have never and i repeat never been offeredon set to verify my partners tests. I always had to ask but with one production (being Girlfriends films) and more often than not i have been looked at at least as an inconvenient. In some cases i have even been told that my lack of trust had taken me out of future assignments.

    Most girls and guys go on set and don’t have a fucking clue about their counterpart testing accuracy and freshness. It’s all in the hands of the producer, if it hasn’t changed in the last few months – and i doubt it.

    Start teaching adult workers at any levels to be professional. Educate both performers and producers to safety: i want to know in advance whom i’m going to shoot with; i want to have their test in my hands before i shoot without i have to beg for it; i have the right not to shoot with a partner having an STD history and test expiring tomorrow; i have the right not to shoot with an escort (it’s a different job, guys and gals, face it and decide which one you want to keep – and producers stop hiring escorts, we all know who they are; i have the right not to shoot with a partner who enters the changing room with a fucking joint of black between their lips or as high as fuck and i have the right to get paid for my time even if i don’t shoot: let the fucker pay me, i don’t care. But i shouldn’t be taken hostage of improvised, unprofessional and ignorant producers and performers.

    Be professional, work only with professionals and drop the scum. Educate, educate, educate. Then add mandatory hiv on site tests. Plastic is not the solution. Would you fuck an infected person with condoms? I would not. Ergo, i wanna be sure that you are not infected. And if you are not infected i don’t need a condom, eventually: it should be and my partner choice.

    I will never ever suck a dick wrapped in latex. It’s disgusting, not sexual and totally useless from a safety point of view, unless we are talking rubber thick winter sports socks. Those who work in the adult industry have destroyed the adult industry because nobody, performers in primis, have the guts or the will or the convenience to cut the rotten apples off the picture.

    I know that nobody wants to hear the above, so feel free to trash me. Thanks God i do Business and i can afford not to give a flying fuck about bad business. Enjoy your day everybody and sorry for the colorful language and mispells…i happen to write this while on cam and my senses are a bit messed up 😉

    Also, a hug to you Mike: although we don’t agree on the condom issue, i support on many levels what you are trying to do for this industry.

18. Sabrina we adctually dont disagree as much as you think, Im no fan of condom porn and I would like to see a safe way to make porn without them the problem is in this country we do have an std epidemic within the industry as an interim solution I think the industry needs to go with condoms until such time as this is gotten under control, then we should look at ways to go without condoms and still maintain a level of safety. The way the industry here is going though that will not happen because instead of self regulating we are forcing the government to regulate us and that wont end well for us.

19. The problem isnt the government, it isnt the producers, it isnt the agents, it isnt the AHF…The problem is the vast majority of performers simpley dont care, not about themselves, not about anyone else.

    NOBODY who claims to be concerned for their own, or anybody else’s healthcare has unprotected sex with multiple partners, who inturn are having unprotected sex with multiple partners, and so on and so on. It doesnt matter if you get tested every twenty minutes,,,once you have unprotected sex with someone who has had unprotected sex with ten other people in the last week you are at an astronomical risk level.

    All of this would change in one split second if performers actually gave a shit, but the ACTIONS that they take everyday tell the real story, they couldn’t care less.

    If the industry went all condom I would bet that you would see a rise in the level of good looking girls willing to do porn….The lack of condom use keeps more people out of porn than the ‘right’ to not use condoms gets people to join the industry.

    Porn with good looking people, even with condoms will sell,,just look at Wicked. Jessica(do as I say, not as i do) Drake is a perfect example.

    Sabrina here is an example of what a porn performer should be fighting for, unfortuanately she is in the vast monority in the industry. Performers dont care, their actions are all the proof you need of that, and that is why producers and agent and FSC can do whatever they want with them, they are meat, a pair of legs attached to holes to be used as the producers see fit, and the vast majority of performers are perfectly ok with that. ONLY IN PORN

20. Sabrina, while I do agree with many points, I also take issue with the fact that you claim to have never verified tests:

    “I have never and i repeat never been offeredon set to verify my partners tests. I always had to ask but with one production (being Girlfriends films) and more often than not i have been looked at at least as an inconvenient. In some cases i have even been told that my lack of trust had taken me out of future assignments.”

    This is absolutely not true as I have your signature on your test and your partners test from your shoot with us. There are many producers that do this as an additional safety measure, so I assume you simply forgot, but making a sweeping statement about our entire industry is just wrong as it only furthers the case against us.

21. As a produer who keeps tests, do you pay for them, and do you keep them in accordance with HIPPA regulations. Do you ,as required by law, have a WRITTEN policy on how the medical documets are handled, who has access to them, and do you ever forward those documents to anyone else? Do you have signed written permission from the talent to forward those documents, as is required by law.

    When you say SAFETY measure, do you mean safety as in trying to cover your ass, or safety for the talent. As you seem to indicate here, you require these tests. Do you, as required by law, pay for those tests, and do you, as required by law, offer POST exposure testing and treatment to anyone exposed to Blood borne pathogens on YOUR sets?

    What makes me think these questions will go unanswered.

22. Measure B is a moot point, it always has been, The purpose of measure b is to drain the very limited coffers of the adult industry, that is, the FSC…..OSHA IS THE LAW OF THE LAND,,,\

    Measure B is a political vehicle for the AHF, to root out and expose the industry. A small “local” battleground to test the waters, and then bring the battle up to the big stage,,,and the industry is playing right into the hands of AHF. Porn, the FSC, dont even get it, that they are being played by political heavy weights, people who have long term strategies, who have real money and real political savy. AHF will sacrifice many small defeats to win the overall war.

    But one has to remember, the porn industry is just a mere shell of what it once was,,,,it was NEVER a 13billion dollar industry, and these days in California, Los Angeles in particular, i doubt they generate any more money than Taco Bell. While the industry may claim some victories, the fact is, they have been killing themselves for years now, and they are nothing compared to years past.

    The industry that was in this battle in the begining does not exist today. The final renmants are dying a slow death, and they know it. They are like a hundred survivors of a sunken ship all clinging to a single life vest, the outcome is inevitable.

23. Despite your sarcastic tone I’ll gladly answer. 1. We are happily a fully permitted, OSHA compliant and Measure B compliant studio, 2. Shooting condom only, 3. With written policies for exposure control and management, 4. We do pay for testing, and have since late 2012, 5. Employees are all trained in exposure control per OSHA guidelines, 6. Yes we have written guidelines for document management to maintain privacy as well as in accordance with 2257 regulations, and lastly, 7. NO, we do not release any testing documents to anyone.

    I’m sure you’ll poke holes, find another angle to argue, but the reality is, the OSHA regulations are nearly impossibly to abide by in adult as they were not designed for the adult industry, and they acknowledge this. Responsible studios do their due diligence to try and comply and thus far such studios have not been cited, but have been asked to work with OSHA and other agencies to find a common ground to find the safest measures to protect talent while allowing business to continue.

24. Good foy you. No holes to to poke here. But you do know you are in the inority in the industry.

    I guess the AHF could use you as an example that these regulations arent running business out of Los Angeles. You seem to still be doing business and complying with the law, do you know any reason that so any others are not in compliance along with you.

    Congradulations for being a perfect example that porn can survive destpite the same regulations that every other business has to follow.
    I applaud your success, and I applaud your adherence to law.

    Now, after someone is exposed to BBP on your set, do you pay for POST EXPOSURE testing, and treatment,if necessary, as is required by law, and is this part of your IIPP, as is required by law. You seem to have skipped that question in your answer. Thanks, I look forward to your reply

25. Yes, we have plans in place for all, as stated, we are compliant to the best of our ability. And, we realize we are the minority, but then again, let’s change the context to the construction business. Contractors don’t like having to comply with the endless security requirements, endless licensing, endless permits, but they do it, it’s part of business, that’s why we do what we do. We may not be perfect, thank you for suggesting such, but we aren’t, it’s impossible to be perfect, but you have to try. We have insurance, workman’s comp, and security plans, you put those measures in place and hope you don’t need them. This is how business is done, at least for us.

26. And the question still remains, do you, as required by law, provide POST exposure testing, and treatment if necesarry, to anybody exposed to OPIM on your sets?

    Pardon me for assuming you were not following most of the laws that other production companies seem to ignore. It must frustrate you to see your fellow industry members virtually ignore the laws that you seem to be trying to be in compliance with. And they get away with it for the most part.

27. I answered your question and will answer again, we are fully compliant, we provide plans for exposure and this includes all aspects, so if you wish to hound on that issue, yes, we provide it, as required by OSHA and is part of our plan. However we hope we never need it, same as we hope we never need workman’s comp.

    And, honestly, I don’t care what other people do. In any industry, same as adult, there are some who comply, some who abuse the system, some ignore the system, some fight the system, no different in adult. If talent chooses to work for them, it’s their choice and they take the risk. We may wish this wasn’t the case, but there is just no way to change it. I can only control my set, and my business.

28. That the thing about exposure control plans. You get fined for not having one,,,and you get fined even more if you do have one but dont follow it. Just having the written plan isnot adequate if you dont follow it.

    ANYTIME a person is exposed to any OPIM you are REQUiRED to provide testing and treatment if necessary. Maybe its just me, but you seemed willing to answer some pretty specific questions, but not the one about this particular issue.

    You hope you never need it,,,but you do need it, and you need to do it everysingle time aperson is exposed, which in the case of the porn industry is in virtually every scene produced.

    And again, congrats and props to you for doing a hellof alot more than the majority of the industry, and you seem to still be in buisiness, despite what the FSC says will happen as a result of following the law.

    PS…having myself written IIPP plans that several companies use today, not sure if I wrote yours since I’m not sure who you are, I know that MOST, if not all of the companies I wrote for do not follow the post exposure part of the plan. In fact, several asked me to not include it in the written plan, of course, without it the plan is invalid.

29. Kudos AvaMike. It’s encouraging to read someone within the industry write that they are compliant, whether they agree with it or not, rather than stand on a soap box and say they have a First Amendment right to do whatever they want to talent, who are 1099 employees and should’ve known what they were getting into when they chose porn as their profession to begin with.

    As long time porn fan – and like Mike, I’m a fan of condomless porn but think that whatever system the industry claims to have is broken – it seems to me that porn just brought this on itself, beginning with Rob Black and Max Hardcore. For years, the industry was pretty self-regulating – Cambria’s rules about what you could and couldn’t do on film if you wanted to fly under the radar. When that went out the window – when Black and Hardcore made humiliation, degradation and abuse mainstream, along with those guys doing Donkey Punch, the industry invited scrutiny.

30. Today the most porners think of the Cambria list as more of a script than anything else.

    And if AvaMike here can follow the law and stay in business, doesnt that make Dianne Duke and the performer stooges sound pretty ridiculous..

31. Hi. If i’m reading you correctly, you are saying that i have visioned my partners tests for the shooting with you guys. Ok, i don’t know exactly who you are and you’ll forgive me about that, but the name Avalanche does not help me to figure it out. However, what i meant and i believe i said it is not that i have never visioned my partners tests (i wouldn’t have shot, believe me ), but that i have never been offered to vision them until i explicitly request to vision them. And that in most cases when i made such a request i clearly upset the producer. It should be the first thing done on a set to hand performers the other performers tests. Actually, it should be done even a day before the shooting. But this is not the case. And i want to reiterate that many many performers have never seen the counterpart test before a shooting, simply trusting the producer handling the thing. I think it’s very wrong and it shows the level of education and professionalism of adult industry workers at any level. Yes i did generalize and if you are among the few who take tests reciprocal knowledge seriously, i certainly wasn’t referring to you and i apologize iif i didn’t mention you together with GFF, but i also hope that you will fight to make it become a standard. Changes can happen only from withing the industry. Start dropping the rotten apples, guys, on whatever side they stand, even if that means to lose a bit of money today. It’s an investment for the future, it’s not a loss. If you would like to tell me who you are, feel free to email me. In any case, i wish you a great weekend.

32. @SabrinaDeep –
    Actually, many of us LOVE hearing what you have said! You must remember that most of us arguing for mandatory condoms are doing so ONLY because that’s the only option for safety at this point.

    Literally, there is NO other option to allow performers at least some form of protection. Those test results are fairly useless in the grand scheme of things… all it really says is “I tested negative on this date at this specific time.” It, in no way, says the performer you’re getting ready to have sex with is not infected..

    The ONLY way for you to know that your partner isn’t infected is to take them to the testing system and then stay with them until the scene to make sure they don’t have sexual contact with anyone else…
    This is the ONLY possible way to be sure someone is not infected.

    Otherwise, you must have blind faith that they are telling you the truth. How much trust can you really put in a stranger you just met who accepts money to have sex with strangers. We’re not talking moralities or honesty here, we’re talking about money.

    At this point, what other solution is there besides condoms? If there was some easy way to just “get rid of the dangerous, lying, desperate for money bad apples,” it would have happened a long ass time ago.

    It’s a rather impossible task. Even the most responsible porn star can make bad decisions. That bad decision has the potential to affect others which is why this is even an issue.

    Human beings are expected to make bad decisions. It’s human nature. Most laws and rules are an attempt to try and prevent as many injuries or as much harm as possible.

    The porn industry states they are responsible enough to be trusted.
    As we’ve seen recently, not many people agree with them.

    How much education can you honestly give someone to force them to make responsible decisions? It’s impossible.. especially when money is involved.

    I appreciate your post. 🙂

33. @Jilted

    Can’t agree measure b is a moot point. It raised the constitutionality of condoms as well as voter mandate. I agree that it isn’t going to the ticket to porn safety yet I see the legal arguments raised as either upholding or squashing OSHA in the end.

    With United Citizens v FEC giving first amendment rights to entities we are on a dangerous path here if the industry is able to successfully argue that the stakeholder entities first amendment rights are being violated. UV v FEC is already being used to knock down the IRS in cases where SEC short sales were used to essentially under report income.

    No law or agency stands on its own.

34. For any individual performer the decisions that they make themselves really dont matter., Its the decisions of those you will be exposed to that matter, and the FACT of using all the crossovers, escorts, and people who just dont give a flying fuck has become standard practice in the industry, there is NO safety net of any kind, it is nothing more than russian roulette, for EVERY performer

35. @Lurk,
    Often times certain rights seem to be diametricly opposed to other rights, and here we have free speech vs the individuals right to a safe workplace…I just dont see any court ruling that exposing people to disease is covered by free speech.

    If I wanted to make a movie, and that movie involed cutting off a persons arm, and the actor consented, could I do it, is that a free speech issue? What about just a hand, or a finger, or just a finger tip? Where do you draw the line.

    But I can easily fake cutting off an arm, and still get the same message across,,,,just like I can, as we have now seen, remove the condom from the film. But removing the condom can be expensive,,so is not being able to afford to do something a legit reason to skirt the law….what it my low budget horror flick cant afford the special effects to cut off the arm,,,,but the actor consents to it,,,would it be protected speech,,,,where do you draw the line,,an arm, a hand, a finger, the tip of the finger????

36. Most “freedom” rights revolve around an individual. You know that whole “your rights end where mine begin” sort of thing… You are “generally” allowed to free speech and/or freedom of expression UNTIL it directly affects someone else or has the potential to harm the public.

    Not whether someone is personally offended, but bodily harm and/or the spreading of diseases.

    Protesting is the most basic example. Individuals are allowed to publicly protest anything, but if that protest becomes big enough or directly affects the safety of others then the police will be called in… NOT to stop the protest, but to ensure safety to the protesters and the public.

    It’s all based around The Harm Principle.

37. @AvaMike –
    I’m not sure you get how unbelievably important and smart your post was…
    The biggest problem is that almost no one in the industry seems to understand your logic or they just refuse to accept it or implement it?
    You are correct that every single industry on earth operates with compliance, abuse, avoidance or fighting back. The last time I checked most of the viable businesses still in existence are those who comply (or comply while fighting for change.)

    Can I ask a question? What are your work comp. rates?
    I’m not in CA, but the work comp. rates here are ridiculously low… just wondering…

38. Don’t shoot the messenger..I’m on your side.

    It’s foolish to apply our understanding of common sense and societal or even government regulations on those who refuse to be governed as they assert their rights as they perceive them.

    FSC fighting for their rights under the first amendment perceiving they have a right to intrude and impose on performers and producers constitutional rights to a safe workplace and/or ownership of copyrighted content. Don’t trust the government…we know better, roflmao trust us our self-regulation works cuz we haven’t had an onset transmission since.

    Of course Performers aren’t employees…APAP that rewards parasitic pirates who agree to share revenues with content owners…WTF?

    The girl in NJ suing her parents for support and college money has lawyers convincing her she is entitled…

    And my two favorites…pedophiles who insist children as young as four should not only have the right to consent to sex but at four years ole are able to understand this, discern and freely choose sexual activity after they have been groomed to be aware this is their right. I must be really fucked up to think a four year old should be more concerned with playing nice in the sandbox and tying their shoes than gratifying sexual rights?

    And of course the IT community who insists hacking an IP, router and firewall just because they can is their right and shouldn’t be subject to societal or governmental interference. That somehow they have the right to unrestricted use of others data/info but theirs is private?

39. @AvaMike & Avalanche

    If the industry gave out awards for top places to work I’d sign up and nominate you!

    As a business owner I know how difficult compliance is and even with diligent efforts it’s often daunting to realize holy shit don’t tell me we’re supposed to be doing that too?

    After reading and digesting over five years of OSHA documentation with confirmatory industry media and related lawsuits arguing that performers aren’t employees and all regulation infringes on our regulated first amendment rights …your attitude is more than a little bit refreshing and I hope it catches on to other producers. In fact I hope producers develop a method using testing, lowest exposure permissible and responsive barriers to avoid mandatory condoms for those producers willing to bear the costs this would entail.

    I’m not against condom use but don’t want to see it become mandatory or have non-compliance criminalized which could further stigmatize the industry.

40. @sabrina

    Your experience of intimidation and threats of blacklisting for not going with the flow has been shared too often and in too many industries to discount it’s truth. It’s refreshing to see a performer advocating and asserting their right to be actively involved and engaged in reducing the risk of adult filming.

    Performers who are actively engaged and involved with knowing the risks and doing all they can to reduce them is the second half of producers developing and applying industry appropriate OSHA measure.

    Doesn’t matter how many measures an individual performer takes if they act alone and don’t have the support of the producers.

41. @ LurkingReader – Citizens United really has no impact on porn. The entertainment and media industries have always had First Amendment protections. Strippers – and strip joints – were given First Amendment protection years ago. The question is whether the First Amendment protection is greater than the right of an employee to have a safe work environment. Example: Years ago, a performance artist in New York City had someone shoot him in the shoulder as part of his exhibit. The exhibit was closed and he was arrested. He used the First Amendment as his defense. He lost. Mainstream Hollywood enjoys First Amendment protections. OSHA still rules the day on set and producers, production companies and studios have been sued, fined and had to pay up following accidents or deaths on the sets. As Jilted writes below – OSHA is the law of the land. There is no First Amendment right to cause preventable physical harm to an employee.

42. @jilted. That is one seriously funny post. I wish I’d thought of that line!

43. You hit the nail on the head. The difference between porn and mainstream Hollywood is that porn doesn’t fake it. To use your analogy, they really do cut off the arm – the two penises in one ass are real; the 50 man anal cream pie was real; and Mr. Marcus’s syphilitic penis was real.

44. I dont know which is worse,,,the government making the rules, or the likes of John Stagliano, Peter Ackworht and Dianne Duke making their own rules.

45. Wow this blog comment tread is a treat…not only is Sabrina exhibiting a smart proactive performer and calling for others to join her, there is Ava complying to mostly everything, Lacey reminding about Condoms being the only true “protective” measure verses tests alone and all the other regulars sharing their specialties… only wish we knew which Company Ava works with so we can refer to it when talking about “who’s doing what right”….

46. hey Mike just used the “click to edit”….I like it

47. @bT

    Then please explain to me why FSC via their Vienna VA branch filed an amicus brief in United Citzens V FEC or why they have pushed and promoted similar cases?

    Also please explain to me why the lawyers repping the money behind porn who got bagged by the IRS for SEC shortsales and entity transfers to under report income are telling the world via Huffpo that they are going to use UC v FEC against the IRS?

    Having read many of those arguments and 2257 it would be absolutely foolish to think it’s not realistic to assume at some point an attempt to overturn OSHA via UC v FEC won’t happen.

48. @jilted

    My point in a nutshell. I consider the individuals worse than the government who I have half a chance of holding accountable.

    When you got APAC registered agent Karen Tynan who is also FSC OSHA guru …makes ya wonder…advocating for performers via harm reduction? Hmmm we know harm reduction such as needle exchanges are effective for individuals …are they gonna make a play that entities should have this right too?

    Lol what a can of worms…make an informed choice about where to work as we hide the info that might make you go elsewhere.

49. Yep poopy dicks are real and the speckled dick wasn’t dry skin or HSV that carmex might help….the industry lawyers cover their asses with public articles and opinions that law says porn is obligated to follow mainstream filming regs but then they go into court and argue that any regulations amount to prior constraint etc.

50. Could you imagine a mainstream movie allowing genital to genital contact? If it is was absolutely necessary, they would use prosthetics.

    There is a part of me that really doesn’t understand how you couldn’t make hardcore porn with prosthetics, special effects, cetaphil liquid soap for cum/creampies, etc.

    I guess it just comes down to money… but, you could reasonably say that any male ejaculate could be substituted for soap. Soap can’t taste that much worse than cum for some??

    Stunt porn…. 🙂

51. Harm Reduction programs are NEVER considered successful. For a harm reduction program to even be necessary first you have to have a complet failure of all other options, like in the porn industry.

    Only by changing the behavior of those who participate in the harm reduction program can you have success,,,BUT,,,the harm reduction program does not try to change the behavior, they just deal with the consequences. Many have always argued that harm reduction programs just “enable” the behavior that puts the participants at risk, and in many ways this argument is correct. This line of thought could easily be applied to porn,,,,,,without the testing program do you think all of these people would be having rampant unprotected sex?

    The porn industry uses a system of LAST resort, as their FIRST line of defense, and that, by definition, is failure. ONLY IN PORN could a last resort program be touted as a first line of defense. OIP

52. Kudos to you for doing what youre doing. We have all heard the likes of Hartley, Ackworth and Duke tell us that in porn condoms can actually increase the risk of stds.

    AvaMike, have you ever had a female performer tell you they DONT want to use condoms, or had a female performer tell you that the condoms are causing abraisions, and ‘pussy rash?”

    As far as what company AvaMike works for, they will be the ones still in buisiness if two or three years.

53. Lacey, you could contact State Fund at https://www.statefundca.com/ and ask them. Most CA businesses (as I understand it) are required by state law to use State Fund for their workman’s comp policies (a small number of multi-state companies such as Bank of America are allowed to use an out of state company) so that state chartered company would be your best contact in regard to adult industry workman’s comp rates. IIRC the highest rate is 18% of payroll which is quite high although most pay far less.

54. @mharris –
    18%??? Holy shit, that’s high…
    I don’t think I’ve ever seen anything above 3%… capped at $7,000 per individual.

55. @Jilted….”AvaMike, have you ever had a female performer tell you they DONT want to use condoms, or had a female performer tell you that the condoms are causing abraisions, and ‘pussy rash?”…Those are great questions Jilted… I look forwards to seeing the answer.

56. @LurkingReader – sure I can explain why the Free Speech Coalition would file an Amicus Brief in Citizens United.

    Citizens United was about election laws that limited corporate participation in political advocacy activities. It did not address issues of content.

    FSC is a political advocacy group that is funded by the porn industry. There was a time that FSC included ads at the beginning of porn movies, urging viewers to support their right to free speech and donate to FSC or write their Congressmen. One could have argued that the political ad was banned.

    Citizens United was filed by a political organization that supported Republican candidates for president and also produced and wanted to distribute an anti-Hilary Clinton documentary during the 2008 democratic primary. The argument was that they could not air the documentary because it was a political ad masquerading as entertainment in order to circumvent election laws.

    The Supreme Court decision allowed for the airing of the documentary but went one step further in loosening up the ability of corporations to also advocate for public policies that they agreed with. It allowed corporations to become much more active in political activities.

    As an industry organization, the FSC has an interest in being able to politically advocate for or against proposed reforms that impact the industry. That’s everything from condom and OSHA restrictions, to zoning restrictions that might restrict where porn can be filmed; First Amendment restrictions about where porn might be legally sold (porn may want to advocate to turnover the ban on the sale of sex toys in Alabama); restrictions that force strippers to wear pasties and a G-string or prohibit contact/lap dances with customers, and so on.

    Lots of reasons FSC, as a political advocacy organization, would want to get involved in Citizens United. Meanwhile, Citizens United did not address First Amendment issue related to the actual content of the documentary in question. It did not address whether the political advocacy group, or any group, had a right to produce a documentary that was critical of Hilary Clinton. The question of airing it was entirely related to election campaign laws – they were trying to not call it a political ad.

57. @BT

    Was waiting for you to bring up the content issue…the first amendment relates to lots more than porn content…this case granted First Amendment rights to ENTITIES make no mistake about that.

    Until UC v FEC it has only been INDIVIDUALS who are protected by the FA. Freeman was an individual who was criminally charged…not sure if NH named an individual or entity but I’m pretty sure the five lawyers sitting at my table explaining this to me..nodding and shaking as the others expounded or simplified weren’t leading me astray.

    The question of who has the greater RIGHT isn’t gonna be decided until a case gets filed and works it way through to SCOTUS. That was direct from the five guys at my table and three of them have not only been to SCOTUS but won.

    Seriously ask a constitutional lawyer.

58. @jilted

    Was being sarcastic 🙂 wasn’t trying to imply needle exchanges stop drug use…they REDUCE the spread of disease among injected drug users. Two drug users can use fresh exchange needles (& cooking tools) to continue their drug use without infecting each other when they split a bag of dope…two performers can’t split a scene without exposing each other.

59. Been a long time since Nana washed my mouth out with soap…not sure how cetaphil tastes but I’m sure octagon dish soap makes the idea of eating shit seem more attractive 😉 thinking the real stunt would be convincing producers that there’s a value in buying a replacement for what comes naturally for free from performers.

60. @LurkingReader – don’t want to get into a pissing contest, but while I’m no lawyer and have never argued a case in front of SCOTUS, I’ve been a consultant on a number of First Amendment cases in federal court.

    You’re absolutely right that the First Amendment involves more than just content. In fact, Citizens United is a great example – it was not a case about content, but about political speech.

    Nor is Citizens United is the first time a First Amendment right was granted to a corporation. The media is made up of corporations – book publishers, newspapers, academic institutions (and not just professors), radio and television broadcasters, and production companies have all been involved in First Amendment cases and have all been granted First Amendment protections. Heck, the famous Miller case in porn involved a porn company, not an individual. It was Hal Freeman Productions.

    Content is what porn is what Rob Black and Max Hardcore argued in their criminal cases – and, by the way, they lost. So, we have two recent instances where pornographers lost a First Amendment argument, their product was found to be obscene and pornographers went to jail. In those instances, the government found that the content did not deserve First Amendment protections.

    Citizens United involved protections related to political speech. That’s what was unique. Among other things it removed the amounts of money corporations can contribute to political action committees and whether there could be limits placed on political speech during campaign periods. The porn nexus to Citizens United was its right to advocate in the political arena, not whether it can produce content with or without condoms.

    The right to film without a condom is a content-related issue – does porn’s right to express itself trump the government’s right to mandate the use of a condom as a public health issue?

    More importantly, despite what porn says to the media, Vivid has not made this a First Amendment case – Citizens United or otherwise. Read the Vivid lawsuit; read the trial judge’s decision; and finally read the reporting on the oral arguments that just took place in the Court of Appeals – we don’t yet have a transcript. The First Amendment so far has been a head fake. Porn has shouted about its First Amendment rights from the rafters to anyone with a notebook, but its lawyers have only nodded to the First Amendment in its arguments. Vivid said that testing works and it will suffer economic harm if it has to compete with production companies that don’t use condoms. Kayden Kross said that she is an independent producer and uses her home in Los Angeles County as her production studio; she cannot afford to travel outside of Los Angeles County and pay studio rental to make condomless porn – the requirement will put her out of business; the actor said that if condoms are enforced, fewer scenes will be produced, which means he’ll get less work in his chosen profession and will suffer economic harm. None of them said they had a First Amendment right – well, Vivid, but barely.

    The First Amendment played no role in the trial judge’s ruling – the ruling that was appealed – and porn did not argue in its appeal pleadings that the trial judge was plainly wrong on the law when he ignored the First Amendment in his decision. That is the standard for an appeal – ask your SCOTUS buddies. To overturn a trial judge’s ruling on appeal, the appellant has to demonstrate that the original judge was “plainly wrong” on the law. Porn has not argued this.

61. @BT

    Rather than seeing our difference of opinion as a pissing contest I welcome and look forward to more info like you shared above. As a policy queen it’s more than a little refreshing to see your astute opinions on these cases.

    In November when we had this discussion this case had already been argued and was waiting for the appellate calendar. They opined that I’d be seeing UC v FEC used in ways that would blow me away, specifically mentioning IRS…that has come true. They also said it would be used in other cases.

    So in the end I stand by my opinion that we haven’t seen the last of measure B, Ab332 that is now modified into AB1576 or 2257 challenges because both sides have too much at stake to walk away. Without a crystal ball I can’t guarantee UC v FEC will one of the tricks the lawyers pull out of their magic bag nor will I rule it out as things move forward.

    Totally understand your concerns if my comments seemed to say UC v FEC would be used in Vivid appellate process, and for what’s its worth I laughed my ass off when I read that the cost of doing business is a problem…welcome to the real world 😉

    From the scuttlebutt it looks like they may have raised FA issues but like you said there’s no way to know what or how that happened until there is an official transcript or the decision is posted.

62. Citizens United has completely upended the political world, and was a major factor in the 2012 elections. Not at the presidential level – Romney was able to raise a huge amount of corporate money because of Citizens United but not win. On the other hand, whether you love them or hate them, the Koch Brothers have had a huge impact on non-presidential elections because of Citizens United.

    The ruling also made possible the creation of so many of the organizations that were targeted by the IRS for allegedly not living up to the purpose behind their formation.

    But in those instances, it is political speech they have impacted.

    We’re seeing one of the outcomes of Citizens United referenced by your lawyer buddies – the notion that corporations or businesses enjoy some of the same rights as individuals – playing out in two other ways related to the First Amendment right to religious freedom.

    The first is the Hobby Lobby suit that will be argued in front of the Supreme Court later this month. In it. Hobby Lobby is arguing that a privately-held business has the right to deny its employees certain health benefits if those benefits violate the business owner’s religious beliefs. In this case, the health benefit is birth control. If Hobby Lobby is successful, that will be the first time a business, rather than the business owner, has been given a right to religious beliefs.

    That ruling is important because a number of states are proposing laws that would allow businesses to discriminate against individuals based on sexual preference because homosexuality violates their religious beliefs. Make no mistake: This is about homosexuality even when Conservatives say the bill would protect a Jewish caterer from being forced to serve a pork dish at a wedding. There is no Constitutional right to eat pork.

    So, if there is a ruling in favor of Hobby Lobby, this will be the first time the right to religious freedom will be granted to a business as opposed to a business owner. As your SCOTUS buddies suggest, it will represent CU V FEC influencing decisions in ways people probably never realized at the time.

    All of that said ….. media businesses have had First Amendment protections related to content going back to the writing of the Constitution, which guarantees a free press and the freedom of expression. That is not new.

    There have been arguments over the years – including the Miller decision – over what constitutes a media organization, who is a reporter, what is art – but those decisions have all been applied to businesses as well as individuals.

    With regard to Vivid’s oral arguments in front of the Ninth Circuit, the only thing we have to go by so far is the report of the proceedings in AVN. So, buyer beware. Based on that account – and again, we don’t have a transcript – the First Amendment was entered into the discussion by Vivid’s appellate lawyer and not by the judges.

    What I mean is, the reporter didn’t report that the judges asked First Amendment related questions. The reporter reported Vivid’s attorney saying things like you can’t equate the health department’s regulations of a restaurant with the health department regulating a porn set because there are no First Amendment issues associated with a restaurant. However, the question – as reported – wasn’t a First Amendment question. It was a public health question.

    Why is all of this important – this is what you want to ask your lawyer friends.

    In an appeal, you can’t appeal a trial judge’s ruling just because you disagree with the outcome or the outcome is bad for your client. You have to show that the trial judge was plainly wrong under the law. That’s the standard. That is one of the reasons lawyers make objections during a trial. Yes, they try to keep adverse material out of the record. But, more importantly, by objecting – and often, by citing other cases and rulings when making an objection – they are preserving an issue of law they can argue on an appeal. They can say, that ruling by the judge was plainly wrong, we said it was wrong at the time and the verdict should be over-turned or a new trial should be held or the whole case should just be thrown out.

    Second, you can’t introduce issues in oral arguments that you did not argue in your appeal briefs. You can’t argue one thing in your appeals and then on the day of oral arguments say: Oops, what we really wanted to argue was this. That goes beyond the scope of the appeal.

    One reason the appeals court panel does not appear to ask questions about the First Amendment, if the reporting is accurate, is that it was not argued by Vivid in the appeal. That is not where they hung their hat. They sort of nodded at it, but their primary argument in court all along has been about economic damage. If you didn’t argue it in your briefs, you can’t march into the oral arguments and pound the table about the First Amendment. That’s the way the game is played.

    So why mention it at all? The Ninth Circuit is known as the most liberal federal appeals court in the country. It is the one court where porn has the best chance of winning a First Amendment argument. By the way, it is also the most over-turned appeals court when its cases wind their way to the Supreme Court. Regardless, Vivid’s lawyer did the smart thing, which is to pepper some of his responses with First Amendment references – he’s throwing it in the mix without going beyond the scope. Perhaps it will be on the judges’ minds when they write their decision.

    Again, we might find out there was more of a First Amendment argument going on there when we see the transcript or get a ruling in a few months. But the AVN reporter did not reference First Amendment questions from the judges.

    That’s what you want to know when it comes to oral arguments: What questions did the judge’s ask?

63. @LurkingReader – OK. At some point you, and probably everyone else on this board, is going to wish I’d just shut the heck up. But ….. for porn to make a First Amendment argument, here’s what has to happen.

    A bunch of things can happen as a result of an appeal decision – some lead to another round of appeals hearings known as an en banc hearing where the full 9 judges hear the arguments. Another is they uphold the judge and Vivid either accepts the decision or appeals it to the Supreme Court. Another is that the judges strike down the decision and send it back to the trial judge for another hearing. That could happen because of the way the trial judge accepted some parts of the original measure but threw out others – the way he rewrote the law, so to speak.

    If that happens, the process starts all over again at the trial court level. Vivid could now make a much stronger First Amendment argument rather than an economic harm argument. They way they argued it the first time around, the trial judge simply dismissed it out of hand in a sentence – Vivid was unlikely to win a First Amendment argument. Let’s move on.

    In a new round, porn could deemphasize the economic harm and make this a balls to the walls First Amendment argument that is potentially appealable all the way to the Supreme Court. I suspect their original lawyers – the Cambria firm – were reluctant to do that. Remember, Paul Cambria created the Cambria list of things porn should not film so that it does not bring attention to itself – things regulators and law enforcement had pretty much made peace with. My gut tells me he does not want to give a Supreme Court that tilts conservative a chance to revisit Miller. This is the same court that has so far preserved Roe V Wade, which gave women a constitutional right to an abortion, but has also given states wide latitude in finding other ways to regulate abortion. It can give porn a First Amendment protection, but give states wide latitude to regulate its production.

64. @BT

    Anyone who is sick of your posts doesn’t have to read them. I’m sure there are people sick of me…oh well.

    By the time I was 17 I learned…NEVER assume or guess how an appellate court will rule. Also learned that amicus briefs are filed by polar opposites who see a case as a way to open the door to where they want to go. Got told friend of the court doesn’t make them your friend..just means they got some skin in this game.

    This UC v FEC is one of those cases. It started out as a group trying to exercise their right to assemble and financially support their candidate. It also involved two corporations whose employees violated FEC.

    Politicians are in a fine pickle with this one…this case started because of stuff that happened for the 2008 election as a direct result of people still pissed over the 2000 election. Whether covert or overt lots of politicians that initially supported this case are sorry now…yeah it made a way to grab and hide more money but they didn’t consider it would open the doors to legal discrimination by entities.

    We haven’t seen the last of the Cake debate either…look for sole proprietors and small businesses to use UC v FEC with all the labor exclusions to prove their right to do business with who and how they please….as the same groups who supported UC v FEC say no no no.

    Even stuff like signs that say…no shoes, shirt no service can become a big deal….now we know shoes are a public health issue in restaurants but shirts are an aesthetic issue that doesn’t pose the liability issues created with broken glassware or contaminated food debris. How about no phones in restaurants?

    Now how are politicians gonna fix it…even the smallest business is required to follow anti discrimination in hiring as part of labor laws, it is common sense that they shouldn’t be allowed to discriminate against customers but…how are they gonna keep one without the other? Using the cake shop as an example, not allowed to say no to paying customer because his door is open for commerce makes sense but why can’t a business that relies on artistic or creative processes of individuals decide what their limitations are to deliver a quality product, is he gonna be forced to hire someone whose personal beliefs won’t interfere with that creative process? What about graphic arts, web design etc.

    Bottom line…no easy answers. Can’t have laws guaranteeing freedom without restricting somebody in some way shape or form.

65. @Lurk –
    It’s not necessarily the taste, but the texture.
    It’s like trying to decide whether you want to swallow soap or snot.
    That was too descriptive, wasn’t it?

    There is an art form to swallowing cum when it’s not just shot on your face, but a whole load directly in the mouth… especially when considering gag reflexes.

    ok, that was too descriptive… I’ll stop now. 🙂

66. I don’t think either of you should shut up… I love reading your arguments to each other.
    Neither of you are “arguing.” You’re debating… there’s a HUGE difference.
    I guess you could call it respectful arguing, but I think it’s fun and very knowledgeable.

    Although, I’ve been recently “semi-debating” the whole Duke porn star controversy and it’s so refreshing to read intelligent comments at this point that I never realized just how much I could miss them… hahaha.