From the L.A. Times: Producers weigh taking legal action or moving out of town when a Los Angeles measure requiring performers to wear condoms takes effect March 5.
For decades, the nation’s pornographic film industry found a happy, largely accepting home in Los Angeles.
Producers operated lucrative businesses in anonymous office parks in the San Fernando Valley. Available in the city were a steady supply of actors and film production talent as well as opulent mansions that often served as theatrical backdrops. By one estimate, at least 5% of on-location shoots were for adult films.
But this coexistence has been suddenly shaken by sweeping health regulations that, starting March 5, will require porn performers to wear condoms while on location.
The landmark law marks a rare attempt to regulate how films are made, threatening an industry that has been a source of millions of dollars in revenue. AIDS activists are gathering signatures for a countywide ballot measure that would extend the ban to dozens of additional communities.
The industry, however, is fighting back. Leaders say that they could take legal action against the city or move filming out of town.
It’s a debate that pits the desire to protect the health of porn actors against the freedom to make films that audiences want to see.
The Los Angeles City Council acted earlier this year after a series of incidents in which adult film productions were suspended amid concerns that HIV had been transmitted among performers. Despite the health risks of having unprotected sex on movie sets, the industry has strongly opposed a condom requirement, saying that monthly testing already safeguards performers and that customers won’t pay to see such films.
“It’s certainly a fascinating conundrum,” said Jason E. Squire, a USC professor of cinematic arts. “You want all performers, whatever they do, to be safe. That transcends content. I don’t know what the proper solution is.”
AIDS activists say that the fight over condoms is about protecting performers’ health and opposing the promotion of unsafe sex.
“The fact that porn sends out a message that the only type of sex that’s hot is unsafe … we think that’s detrimental,” said Michael Weinstein, president of the Los Angeles-based AIDS Healthcare Foundation.
The Los Angeles law was the result of months of aggressive lobbying by Weinstein and other AIDS activists, who have long called on the government to step in and make the porn workplace safer. The council approved the law only after activists pressured it by gathering enough signatures to ask voters to decide the issue at the ballot box. The industry has been forced to suspend production several times amid reports that adult performers contracted HIV. One was Derrick Burts, who tested HIV-positive in 2010 and said clinic staff told him he was infected by a fellow performer.
“It’s a broken system that they have in place,” said Burts, who backs mandatory condoms. “What performer wouldn’t want to feel more safe on a work set?”
Porn industry representatives say the law is unnecessary because they regularly test actors for HIV. They maintain that Burts was not infected on the job, and that they haven’t had a confirmed work-related HIV case since 2004. When a performer turned up HIV-positive in another state in 2011, companies here voluntarily halted production until others could get tested.
Steven A. Hirsch of Vivid Entertainment said his company’s performers are allowed to use condoms if they want — but most don’t.
Filmmakers tried requiring condoms on their own in the late 1990s after an HIV scare, but sales began suffering.
“The viewers out there don’t want to see movies with condoms,” Hirsch said.
Diane Duke of the adult film lobby group Free Speech Coalition said performers should have the right to have sex as they wish. She compared the issue to boxers who fight for entertainment, even though they risk injury.
“The goal of that is to knock someone out — pound them in the head until you knock someone out,” Duke said.
“This is the first step of government overreach into the way we make movies,” Duke said. “It’s clearly the government interfering where it really doesn’t belong.… Because our industry deals with sex … we’re vulnerable and easy to attack.”
It’s unclear how much money the city would give up if porn producers began leaving. Film L.A., the nonprofit that manages permits, estimates that it issues under 500 a year to adult film companies wanting to shoot on location. Some filmmakers, however, may not bother asking for permits. A survey found that one of the top 10 sites for on-location filming in Los Angeles in 2010 was a Chatsworth porn studio.
In the most recent study, local economists estimated a decade ago — before the recession — that the industry generated $4 billion in sales and provided 10,000 to 20,000 jobs annually to actors, makeup artists, camera crews, caterers and the like.
Even with the condom law, there are still options available to the porn industry. A loophole allows filming without condoms in certified sound stages like ones found at major movie studios.
They could also do filming outside the city limits, though it is unclear what kind of welcome they would receive.
The mayor of the Ventura County suburb of Simi Valley has already called on his city to draft a mandatory condom policy similar to that of Los Angeles.
“The people of our town do not want to be noted for being porn purveyors,” Mayor Bob Huber said.
Porn producer Hirsch considers the condom requirement “a nuisance more than anything else. We will continue shooting the movies, and if that means outside of the city of Los Angeles, so be it.”
Duke says she thinks that other states would welcome the industry. Some have suggested Nevada, which hosts an annual adult film trade show and even has legal brothels in rural areas — although they are regulated and require condoms.
But there may be a legal obstacle to pulling up stakes entirely: Porn generally became legal in California after a 1988 state Supreme Court decision ruling that adult film producers shouldn’t be prosecuted under anti-prostitution laws. Only one other state, New Hampshire, has had a similar court ruling, issued in 2008.
There could also be political resistance in Nevada. As its population has grown and gambling casinos have become parts of major Wall Street-traded entertainment and resort companies, the state has become more economically and socially conservative, said Michael Green, professor of history at the College of Southern Nevada. For instance, he said, Nevada has voted to ban gay marriage and rejected the legalization of marijuana.
“Those are not necessarily the hallmarks of the old libertarian Nevada,” Green said. And noting that government has tried to attract new industries to the state, “diversifying Nevada’s economy by becoming the next Hollywood for porn strikes me as contradictory,” Green said.
Additionally, there is plenty of talent in Los Angeles for the adult industry. Some aspiring actors, videographers and sound engineers who arrive here hoping to break into mainstream movies find their way working in adult films.
Weinstein’s political march, meanwhile, isn’t stopping at City Hall.
The AIDS group is gathering signatures for a November ballot measure that would ask Los Angeles County voters to require condoms when porn companies film in areas regulated by the Los Angeles County Department of Public Health, which has authority over all 88 cities in the county except Pasadena, Long Beach and Vernon.
But at this point, city officials have not determined how they will enforce the new law. They are forming a committee of advisors from the Los Angeles Police Department, the city attorney’s office, the California Division of Occupational Safety and Health, and others.
“Frankly, it’s hard to tell” what the adult film industry will do, said Mark Kernes, senior editor at AVN Media Network, an adult film industry trade publication.
One Response
Mike: This is the best-reported and best-written piece I have read on this issue. It lays out three arguments, and only one of which matters.
Among other things, Weinstein says that porn sends out a message that only unsafe sex is hot, and that’s detrimental. That is a losing issue for the pro-condom side. There is a first amendment right for individuals to send out any message they want to send out. There are limitations on commercial speach, but the news media, art, books, music,drama and films are extended the rights of individuals. Government cannot shape the message by limiting speach. In fact, the Supreme Court upheld the rights of a parade in South Boston to limit participation by gay groups because it did not want to promote a gay message in its parade. The court ruled that a parade is a form of speech. If porn producers want to say that unprotected sex is hot, it’s their right to say that.
Among other things, Duke compares filming porn to boxing, where the object is to knock out the other guy, an inherently dangerous act. The problem is this: boxers wear all kinds of protection in training and are required to wear protection in the ring. They wear cups to protect against low blows. They wear mouth guards. They wear heavily padded gloves – the size of the gloves is regulated. Attending physicians and corner men wear latex gloves. If anything, boxing would argue in favor of condoms: necessary steps are taken to insure that a dangerous sport is practiced as safely as possible. If you use that same logic, porn can still film ATM, anal, squirting etc as long as its done safely. A condom does not prevent a penis from entering any orifice.
Kayden Kross and many porn performers liken the mandate to a limitation on their personal freedom. But that too misses the point – the government isn’t telling them what they can or can’t do in the privacy of their own home. Only what they must do in the work place.
So, it’s going to come down to workplace safety and public health. The USC film professor has it right when he says that safety transcends content and he doesn’t know what the solution is. For example, a movie maker like Sam Peckinpah could turn raw violence into a ballet, but he couldn’t do so by actually shooting and stabbing people. He had to get out his message in a safe way.
Whether you agree with the ruling or disagree with the ruling, it’s going to come down to whether the government has a right to put in place rules to create a safe workplace and protect the public health. Porn is trying to win the battle by focusing almost exclusively on HIV in its arguments and treating syphllis, herpes, gohnhorrea, chlymidia, hepatitis and whatever else you might contract by sharing bodily fluids, tonguing rectums, etc. as treatable nuisances. I think that’s a losing argument.