California Assembly Bill 332 (AB332) Condoms In Porn

65 Responses

1. If the adult film companies want to leave the state and go rogue, other people will step up to the plate and DO IT RIGHT! The new companies will have better quality and hotter stars still, and their workplace safety standards will be sterling! In my opinion, the studios that currently pay Diane Duke to piss off the authorities on their behalf need to step up to the plate and and implement these safety measures! All the while thanking their lucky stars that they’ve gotten away with mistreating their employees for as long as they have!
   Here’s another idea? The adult film companies can take the money they would have given to the FSC and instead use it to implement safety measures, eh?

2. And for those who still think that performers are independent contractors take note of section 2, “EMPLOYEE” means a person who is an employee, INDEPENDENT CONTRACTOR, or unpaid individual……”

   You may be an independent contracor when is comes to getting paid, but for health and safety issues you are an employee.

3. The problem with the bill as it is currently worded is that it is facially unconstitutional. The law would only apply to “representation[s] of sexual intercourse for the sexual stimulation of the
   viewer…” That would presumably mean that representations of sexual intercourse designed for educational purposes, or moral purposes, or aesthetic exaltation, etc., would NOT have to comply with the requirements of the law. That is what constitutional lawyers call a “content-based” restriction, and it is very obviously unconstitutional. To see why, just replace “for the sexual stimulation of the viewer” with something like, “for the stimulation of Christian ideas,” or “for the advancement of marxist principles,” etc. The government may not impose burdens on speech based entirely on the viewpoint or content that it communicates (with very few and narrow exceptions).

   Now, to correct this truly moronic blunder, the California legislature need only remove the words, “for the sexual stimulation of the viewer” as part of the definition of what it is seeking to regulate. The legislature can easily pass a law requiring ALL films, media, etc., that represent sexual intercourse, to comply with these requirements. But it can’t require only one type of CONTENT or viewpoint to comply. That is, on its face, a violation of the First Amendment.

   There is no balancing test that applies here–there is no, “Well, on balance, porn is more likely to spread disease, so the benefits of restricting this speech outweigh the costs of censorship, etc.” Here is what conservative Chief Justice Roberts has to say about that kind of argument:

   “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.”” United States v. Stevens (2009).

   So what if they remove the content-based restriction and make it more universal? The law would now be facially constitutional–BUT it would also drag into its ambit hollywood films, documentaries, sex eduction films, etc. Now a lot more interests are at stake, a lot more power joins the fight. At the very least, the law probably have to be VERY specific about what constitutes “representation of sexual intercourse”…

4. Great points Alex. Perhaps you could address this. If a producer is creating a visual depiction of activity that REQUIRES his employee to be exposed to disease, is that protected speech, and who is responsible for the consequences of that exposure?

   It really doesnt matter because OSHA regulatins are still the law of the land. The porn industry has had ample oportunity to appeal past OSHA decisions regarding these matteers. The fact that none of the free speech advocates in the porn industry have ever done this speaks volumes, if not throught their silence.

   Was US v. Stevens a case of personal speech, or commercial speech?

5. I’m not sure I 100% get your point about “requiring” someone to be exposed to a disease. People can be exposed to disease on a porn set, as well as on a mainstream set, as well as during a shoot for a documentary or an educational film. Some mainstream films have shot real sex, as have some documentaries and some educational films. Any time you film a “representation of sexual intercourse” people can find themselves exposed to disease. And not just actual penetrative sex: kissing, the close contact of simulated sex, even just touching people in general may cause a transmission of a disease.

   My point is that you can’t regulate such representations ONLY when the point of the speech is to sexually arouse, but then NOT regulate the exact same conduct when the point of the speech is to edify, or educate, or exalt, etc.

   Now, my understanding of California labor law is that employers are generally liable for injuries suffered by employees in the workplace–and it is also my opinion that porn performers are clearly “employees” under that same body of law. I know that any time anyone has been injured on MY set (one time), I have paid for any and all medical expenses.

   My point about the bill as it is written is that it seems clearly designed to leave Hollywood and other types of speech alone–but that makes it impermissibly content-based. The law does not regulate dangerous CONDUCT–it only regulates conduct when it is done for a certain REASON (i.e., sexual stimulation of the viewer). That is plainly unconstitutional.

   I think you misunderstand the term “commercial speech.” Commercial speech doesn’t apply to speech that makes you money. Commercial speech applies to things like advertising. People make money from fully protected speech all the time–books, tv shows, movies, etc. The fact that you make money from an instance of speech has no bearing, really, on its protected status.

   U.S. v. Stevens was the animal cruelty video case. Roberts made clear that, while you can proscribe cruelty to animals, you may NOT proscribe speech that represents it–that would be a content-based restriction and unconstitutional.

6. I very much agree with your opion on this matter Nick East. But I think greed factor plays big part in this subject clouds common sense factor in porn companys welling use pay FSC fight tihis. I all,s beleave industry slowy start realize no matter how much money they can raise fight this is gone matter becuase there argument against not very strong. Special after last STD scandal not so long go like FSC Diane Duke keep claim never happen. Prove porn companys where not welling or able prevent STD from happen how thing are now. Porn companys you brought this on your self can not blame FSC or talent agencies. When told world that pass strict measure prevent thing that happen last STD events did follow through with any measure you set your self up for what face today. FSC can spin all fairy tails it like spend all money can raise fight issue gone lose it got no more credit with California voters.

7. Here thing you got under stand about California Alex Bettinger it been slowly marching way there state citizens right to second amendment on claim that there safer with out it. So would be much of strech for state California pass law againt porn inusdrty that go right round frist amendment make them stick. Governor Cuomo’s New York just prove he could buy pass second amendment have law pass near impossable remove in highiest court in New York state.

8. What would happen under these two hypothetical situations if this law was to pass?

   1.) What if I stumbled upon two people already fucking without a condom, and those two people agreed to let me film it? Is the fact that I pulled out a camera going to increase the chances of spreading an std?

   2.) What if a guy wants to shoot a scene with his own wife or girlfriend that he already fucks all the time without a condom? Is he supposed to put on a condom just becuase he’s filming it?

   Those two examples point out how stupid and impossible to enforce a law like that will be.

   Is there supposed be something about the sex that’s being filmed, that’s makes it any more likely to spread a dissease than the other sex that’s happening in everyday life everywhere anyway?

9. While it may seem ridiculous that a guy who has sex with his own wife is required to use a condom it would be no different than a construction worker who doesnt wear a hard hat when he works on his own home…he would still have to wear one on the job.

   This law will almost certainly pass, the Fsc is going to insure it by using the same failed tactics they used last time.

10. Alex, you are wrong. For the most part, porn could easily be declared obscene and the Constitution makes a distinctions of what is protected based on content. As Miller stands, if the content appeals to prurient interests, it is not protected by the 1st Amendment. Freeman–at its core–made a legal distinction between making adult films and prostitution. It did not eliminate federal obscenity law.

    So, first things first. Before you champion a Constitutional right to make porno, you have to reform the litmus test for obscenity so that ALL depictions of sex between consenting adults are protected by the 1st Amendment.

11. Mike, the analogy does not follow.

    Wearing a hard-hat does not impede on the quality of the finished work. Condoms significantly impede on the quality of the visual presentation.

    I’m not saying that the consumer interest should be paramount. Performers should be guaranteed a high level of safety but this does not need to be done with an across the board condom mandate that even punishes monogamous couples.

12. The difference between OSHA regulations and statutes like the one Measure B enacted is huge. OSHA can only respond to complaints and fines are the usual punishment. The new statute states that all producers must get a health permit. Section 4, part 3, subsection A says that those who film without a permit are guilty of a misdemeanor and would face criminal prosecution.

    Do you think the majority of LA sex show cammers are aware of this? And this law was supposed to help performers? I’m sympathetic to those who say the majority of producers are scumbags but this law is downright tyrannical.

13. Ya maybe but I think the reality is that the whole workplace safety issue cant be circumvented so easily. Fact is porners have been irresponsible far too long and even now refuse to acknowledge that the hazmat suit argument is childish and wont win this fight…

14. This law WILL NOT PASS statewide. We are going to get some help from a powerful group that supports our rights.

15. The irresponsibility of producers has gone on for too long. Unionization will fix that. It will be done despite any regulatory changes…

16. origen01, I think the key word in what you wrote is “could.” Yes, all porn “could” be declared obscene by the Supreme Court some day–but that has most certainly not happened yet, and there are actually quite a few lower court decisions finding even very explicit hardcore pornography NOT obscene.

    Plus, the three part test in Miller included prongs that deal with community standards (it’s actually very easy to show just how into porn most communities are now, thanks to ISP records), and artistic merit (of which judges often hate to be the umpire). If your view is that any work which “appeals to prurient interest” is by definition not protected speech, then I think you’re mistaken. Miller reaches no such conclusion.

    As of right now, as the law currently stands, I’m actually very optimistic that there will be NO controlling decision by the Supreme Court declaring all hardcore pornography obscene as such. In fact, if anything I think the courts are leaning the other way. Most of the obscenity convictions I read about involve scat videos, bestiality, etc. I have definitely never read any serious judicial opinion stating that, as a matter of law, any and every porn movie is criminally obscene.

    Now, as for reforming First Amendment jurisprudence and the doctrine of obscenity–I think the way these things usually happen is not with some magical sweeping high profile case where the Court realizes it has been suppressing our freedoms and decides to remove the fetters it has imposed upon us…..No, what usually happens with dumb legal doctrines is that they slowly wither from lack of use, grow increasingly narrow, are no longer cited by lawyers and prosecutors, etc.

    If you look at the history of obscenity law, it seems to be following that sort of path. Which is not to say that some new right wing President couldn’t come in and reinvigorate obscenity prosecutions for a time–Romney swore he would do just that. But I think the larger trajectory of the doctrine is one where it will languish in a slow death. Almost everyone who studies free speech doctrine agrees that the obscenity exception is an anomaly–it just makes no sense, and is unlike any of the other exceptions. It’s a relic, and as porn continues to boom in popularity, and as sexual mores continue to evolve, its obsolescence becomes more and more clear to everyone.

17. Alex, that’s all nice and good in theory but things do not go that way. I’ve simply just broached the topic of obscenity on the federal level where prosecutions have been minimal. Besides those scat and animal cruelty vids, we’ve never had a good case to test the court’s acceptance mainstream hardcore pornography (Stagliano’s case would have done so but it was dismissed). I didn’t even mention the myriad od obsecnity prosecutions going on the state and local level. It’s the reason why Fattorosi, Piccionelli, Randazza et al are so filthy rich.

    Obscenity is the mark of obsolescence? Go visit Kimberley Kupps and her husband in their Central Floridian jail cells.

18. I agree that this law would place enormous burdens on producers of sexually explicit speech. And that is precisely why I think it’s important to focus on what is obviously defective about the bill, namely, the fact that it is blatantly content-based. It ONLY applies to people who make speech that is designed to sexually stimulate the viewer. It presumably does NOT apply to, say, an art film that is not interested in sexual stimulation–even if that film represents actual penetrative sex. That makes it irremediably content-based–it’s the government saying that the exact same speech by two different speakers should be treated differently by the government, depending on the viewpoint of the speaker. That will never pass constitutional muster.

    By forcing the legislature to remove that kind of viewpoint discrimination from the bill, it will now get the attention of hollywood movie companies, artists, etc. Because then it becomes unclear if the law could be used against a softcore scene. All it says is “representation of sexual intercourse.” Well, plenty of mainstream movies “represent” sexual intercourse–they just simulate it. But in such scenes there are bodies that are really touching, naked bodies, sometimes with some sort of protective barrier, sometimes not. Do they need to pay for all these things too?

    Unless the language of the bill is made more concrete and specific, the big hollywood studios won’t know, and they will likely be dragged into the fight. Which would be a good thing.

19. I never said obscenity was gone–I said it seems to be on the wane. The fact that neither Clinton nor Obama have any interest in ANY obscenity prosecutions is a good indication of that.

    To be sure, there are rubes and conservative ideologues in lots of places that could easily find a Girls Gone Wild video obscene. But even in those places, I think you will find that they don’t make obscenity a top priority. When you compare the HUGE amount of porn being made quite in the open to the number of obscenity prosecutions, I think you’ll find the ratio does not really suggest that the obscenity doctrine is a particularly vibrant one.

20. I think Alex makes great points if you look at the sodomy laws they went down in a similar fashion. Lawrence v. Texas essentially forced the courts hand to weigh in when such laws were generally no longer being enforced.

    All that said when it comes to AB332 The Fsc’s biggest enemy isnt AHF, nor has it ever been, the FSc’s biggest enemy is the FSC, if yall want to defeat this you better do a damn sight better than Diane Duke, Mark Kernes and Jeffery Douglas….

    Every arg you make can easily be countered…quality of product you say…Wicked Pictures I say….

21. EXCUSE ME! Kimberley Kupps took a plea last year and the felony charges against her and her husband were dismissed. Sorry about that.

22. Obscenity prosecutions are costly and most communities are feeling budget crunches as well….that money is way better spent on other quality of life issues i expect. I know a few prosecutors and they all say that an obscenity prosecution for all but the most egregious examples (like Ira Isaacs) is a waste of money, and time, juries are just too unpredictable making obscenity trials a bad bet.

23. Mike, every studio, just like every performer, should have the CHOICE to use condoms. Just because it sells doesn’t mean it adheres to the artistic goal. When I watch “Deep in Porscha”, an homemade IR DVD series, I REALLY like to see Porscha orgasming all over Big Max’s bare cock. Just like bareback is preference in everyday sex, it should be a preference when shooting porno–as long as performers always have a choice.

24. You forget, Mike, that most criminal convictions in the US are not reached by trial…

25. I don’t think that’s a good comparison, richard373. The extent to which the government can regulate firearm ownership is a notoriously difficult and controversial legal question. Everyone agrees on that, since, after all, there is already a ruling establishing that it’s okay for the government to prohibit the ownership of machine guns.

    However, the principle that the government cannot selectively impose burdens on an instance of speech simply because of the viewpoint it contains, is not at all controversial. That’s constitutional law 101.

    Here is an example, from a famous Supreme Court case. A state legislature can very well prohibit the burning of crosses when such conduct is likely to promote violence. A state legislature may NOT prohibit ONLY the burning of crosses when that conduct is likely to promote violence “on the basis of race, color, creed, religion or gender.” R.A.V. vs. City of St. Paul (1992).

    Likewise, a legislature can impose restrictive burdens on representations of sexual intercourse. It may NOT impose burdens on representations of sexual intercourse ONLY when those representations are “for the sexual stimulation of the viewer.”

26. Alex, your argument is sophisticated but to what extent does this bill address content at all? It doesn’t address any of the content material (video, pictures, DVDs etc) at all but simply the production methods….

27. Well, think of it this way. Imagine a legislature passed a law saying: If you want to write a book about class inequality, then you have to fill out several forms, pay several fees, hire a professional to make sure you are not distorting facts, etc., BUT ONLY if your book is designed to promote marxist principles.

    If however you want to write a book about class inequality, and your book is designed to promote pro-capitalist principles, then you don’t have to do any of that. You can just publish your book.

    See? The law only applies to production methods–and yet it is obvioulsy content-based and would never be upheld by any court. It’s unconstitutional on its face. And that’s exactly what 332 is now.

28. This doesn’t really address my question because, in your analogy, the fact that the legislature is trying to regulate free speech is tautological.

29. It’s tautological in 332 too. The content-discrimination is built into the statute. The law ONLY applies to the making of speech “for the sexual stimulation of the viewer.” It presumably does NOT apply to speech “for the education of the viewer.” So a sex education company could film two people actually having sex, and it would not have to comply with the requirements of the law.

    You can’t impose burdens on a speaker simply because his speech is meant to sexually stimulate the viewer, any more than you can impose burdens on a speaker because his speech is meant to stimulate religious ideas. Does that make sense?

30. hmmmmmmmmmmmm.

    i c what u did thur… 😉

31. I do think Alex is dead on the money but removing that one phrase for passage seems easy enough…no doubt it was included to exempt Hollywood and possibly instructional videos or something but in the end I dont see it being that important that it couldnt be stricken.

    Being of Libertarian principles I would agree (and always have) that it should be up to performers to decide but that hasn’t been the case and the industry’s negligence and apathy has led to situations where arguably the public at large is endangered and theres nothing government loves more than to curtail a basic freedom in order to keep the citizenry “SAFE” like it or not thats reality and its gonna bite us in the ass because we have idiots going on about hazmat suits and us being the safest people on earth to have sex with…both complete fabrications and obviously so to the people who would vote on this bill.
    and dont forget AHF surely plans to put this on a statewide ballot should the legislature fail to enact it.
    What porners aren’t doing is anything to even try to reach a compromise.

32. I agree with everything you said, Mike. Though I suppose it’s all a matter of strategy. Here is how I envision it:

    (1) By calling attention to the obviously unconstitutional aspect of the bill, and forcing them to remove that language, we immediately call attention to the prejudicial nature of the bill (i.e., it’s not really about worker safety, it’s really about just going after porn, etc.).

    (2) We also then force them to get specific about what exactly you need to be filming in order to be required to comply with the law. The phrase, “representation of sexual intercourse” is preposterously vague, and could easily sweep into its ambit even entirely fake, softcore scenes. Which means, once again, that Hollywood companies would be dragged into the fight. This would raise the stakes, and once again force the drafters of the bill to be much more specific and concrete.

    (3) Once we get them to be super specific about what kind of activity triggers the statute’s requirements, then at least we know exactly what we’re dealing with, and can begin to work around those triggers, as well as with them, etc. I think this industry is more than able to come up with cheap solutions to problems like these–hell, I can see a whole new business model, a 332 business, which, for a fee, will take care of all of your 332 needs, etc.

    I also think that the adult industry might benefit by further exploration into the softcore world. There is a whole universe there waiting to be exploited–dramatic sex scenes that could never be done with actors who are “really” having sex, but that can only be done softcore style. That’s honestly my favorite kind of content to shoot.

    When the anti-porn people see that their ruse about protecting performers doesn’t actually stop the amount of porn being produced and/or consumed in the U.S., my hunch is that they will eventually lose heart and just give up. Their efforts may indeed drive a few American companies out of business–but porn, produced all over the world, both hardcore and softcore, will continue flooding the internet and these anti-porn efforts will have amounted to literally nothing (other than drive more American dollars to other countries). Even these true believer crusaders will have no choice but to recognize that they will have done nothing to diminish the amount of porn in the world.

33. Here issue at hand Alex Bettinger the state looking at this as worker health issue not a freedom of speech issue. That one biggiest reason when this bill goes court well be such big up hill battle for indusrty prove that not. Indusrty health record gone be going up against judge he gone have hard questions for indusrty they are gone have give pretty truth full answers is gone make indusrty look to good when that happens. Here thing gone hurt indusrty most on issue Alex Mike made this cleariest on this point here indusrty told stay done best on issue let state down many times make the stae look stupid ever allow them do so. How times can send young porns stars state capital fight same issue with same old fact before people there just ingor them?? California one strang states that has pass laws that have chanle frist and second amendment they regulate firearm laws like religious zealots. How I know that Alexis I used sell gune there in gun shop when live there. State still try hard can ban all owener ship of any kind firearms and ammo from people live there even as second amendment says they can owen them.

34. I’m not sure I understand everything you said, richard373, but on the question of a legislature being able to circumvent the First Amendment because worker health concerns make it convenient to do so–I would just refer you again to what Chief Justice Roberts said about such arguments:

    “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.”” United States v. Stevens (2009).

    Regarding the Second Amendment in California–I will have to take your word for it. I live here in Los Angeles, and was able to legally procure two firearms with no trouble at all. I took an incredibly easy test, and that was all it took.

35. Try getting a concealed carry permit there….LOL

    Here in Ga 40 bucks, fingerprints and a GBI background check …good for 5 years carry anywhere but fed gov bldgs, schools and concerts/sporting events

36. Wow!!! “We are going to get some help from a powerful group that supports our rights.”
    Did you REALLY just say that, origen01?

37. What fail say that when bought your gun you where only allow what state allow you buy if was on there aprove gun list could buy two guns you bought or if care more ten rounds could owen it. You wait two weeks for back round check as got finger print Alexis I live in Azona wait one day for back round check which allow me buy any kind gun that want. Soon Alexis your state gone pass more laws that well not allow you keep your handguns just like there one just passed Nork York state . Alexis fail that test would be allowed buy two gun you bought you would got your money back spent on your guns becuase state does allow it gun store than keep your money for failing that simple test. Buy way Alexis your only allow buy one gun month in California if buy more than that break law in California. Alexis I got Arzone concealed carry permit that allow me me care my guns concealed in ever state that allows me do that. Like Mike said try get one those in Los Angeles. Alexis I can buy machine gun suppressors short barrle firearms in my state allow try in yours. I am gone say sorry Mike for turn in gone issue. Only point I was make states can pass laws that can go right againt any thing that writen in bill rights.

38. Wow! Would you consider ME anti-porn? Just asking, because as I read your comments I couldn’t help but feel that you think that people who want the adult film companies to protect the health of their employees are ‘anti-porn’. How about I’m anti anyone who wants to exploit their employees for profits sake and could care less the STD’s that they brew and pass on to the general public!
    I am pro-performer, period!

39. Alex,
    To clarify what I meant by requiring someone to be exposed. An agent books a scene for a performer. The rate for the performer is based on what the scene contains, oral, anal, facial cumshot with an open mouth,,etc. Before accepting the ‘job’ the talent is told what is expected of them. If they are up for it they go ahead, if not, they turn down the job.

    So if the negotiations for the job include a facial cumshot with your mouth open, that is what I call being reequired to be expolsed to OPIM.

    So I will ask again, is the creation of speech that ‘requires’ someone to be exposed to OPIM protected.(ps agents are required to keep all contracts and ‘notes of negotiation’ for those contracts)

    And regarding choice, yes performers choose to be in this industry, and so do producers. When a producer makes the choice to legally hire someone to be an actor in his creation of speech(film), the producer has the legal responsibility to follow the laws regarding workplace safety. The buck stops with the producer, not the performer. Thelow level employee does not make the decision on whether or not to follow safety laws, the producer does.

40. I can assure you, Nick East, that nothing I’ve said is about you, since I don’t know who you are or anything about you. I definitely do not believe that people who urge condoms in porn are *necessarily* anti-porn. On the rare occasions that I shoot hardcore content, I almost always use barriers, though most performers prefer to work without them in my experience.

    However, I have had dealings with several people in AHF and it is clear to me that many of them have no interest in AIDS prevention, no interest in protecting porn performers–that is just a ruse for them to try to shut down the American porn industry. Their real agenda is just to stop porn. Of course, what they don’t realize is that, even if you shut down EVERY porn company in America, the amount of porn consumed in this country wouldn’t diminish in the slightest, since people would just buy it from companies in other countries–Japan, Germany, Brazil, etc. Which would just mean billions more American dollars gushing out to other nations…just what we need…

    Anyway, those types of anti-porn people are very frequently the ones who are most vocal in pushing these types of measures on the industry. I am not talking about you personally, though, since I have no idea who you are.

41. I think you are conflating some issues, jilted. Let me propose a few scenarios which, taken together, may answer most of your questions.

    (1) If a performer is contracted by a porn company to perform a scene with oral, anal, facial, etc., then that performer MIGHT be exposed to a disease.

    (2) If a performer is contracted to perform a kissing scene where saliva will unavoidably be exchanged, or a softcore sex scene where naked bodies touch each other, in a hollywood movie, that performer MIGHT be exposed to a disease.

    (3) If a performer is contracted to perform an oral, anal, facial scene by a well known video artist (remember Andy Warhol’s blow job video), that performer MIGHT be exposed to a disease.

    (4) If a performer is contracted to perform oral and anal sex by an established and respected sex education company, that performer MIGHT be exposed to a disease.

    EVERY SINGLE ONE of these scenarios is protected speech.

    And a law which only imposes restrictive burdens on ONE of these scenarios, in part because of the viewpoint that the speech in that scenario carries (i.e., the speech is designed to “sexually stimulate the viewer”), then the law is unconstitutional on its face.

    Does that clarify things?

42. Alex does matter if think law unconstitutional if pretty sure bet state California can pass law they well pass it. They well be meeting changle to that law in Supreme Court of California. Where state California won all most ever case once pass law keep on there books. That simple you can spin all story about this case and that case but that simple truth. You can ask motorcycles that have wear motorcycles helmets in your state you can ask people who get seat belt tickets for not wearing there sea belts in your state. You can ask and State CAL/Osha who do not list porn stars as artiest they list them as employees porn company.

43. If you making movie for main stream movie company your actor get hurt on the movie set your where make in California your expect pay cost for that actor. That why main stream movie companys insure actor in California for that very reason at there owen cost. One many ithing nusdrty never want never try to do.

44. The right to not wear a motorcycle helmet is not protected by the First Amendment.

    The right to not wear a seat belt is not protected by the First Amendment.

    What makes 332 different from those situations is that it applies to *speech*, and the free speech clause of the First Amendment, which even this very conservative Supreme Court has been very adamant about upholding, is thus called into play.

    That porn performers are deemed employees in this or that legal context is 100% irrelevant to the question of a First Amendment violation. A painter can be hired by a company to paint a picture for its office. That painter might be deemed the employee of the company, or perhaps an independent contractor, for purposes of health and labor law. It makes no difference–he is still an artist, and a speaker, for First Amendment purposes. As are script writers, actors, directors, etc., of movies–whether they depict sex or not.

45. Alex this issue going courty and FSC useing your argument fight law that inspire state law that just got past there in your home town of Los Angeles. If this court allows FSC sue city of Las Angeles over law just pass there you can tell me all you want you told me so I well agree with you. How ever if FSC fails it more likely in law suite againts city you live in you congratulate ever body on my side argument that told you so.

46. No, my understanding of the LA ordinance is that it contained no such impermissible content-based language. I think that under the LA ordinance, ANYONE who shoots actual sex in LA–no matter whether they are a porn company or a mainstream company or an educational company or an avant garde artist–must comply with the rules set forth there. Though I may be wrong about that, I honestly haven’t studied the LA ordinance, since I myself am happy to use barriers when shooting hardcore scenes.

    This new bill, 332, exempts from its ambit all “representations of sexual intercourse” EXCEPT those whose speech is “for the sexual stimulation of the viewer.” That is obviously unconstitutional.

    Trust me that the argument I am making is probably NOT the argument the FSC wants to make, since they are trying to defeat the very principle of required protective measures. My point, by contrast, is that if porn companies have to comply with this law, then so should EVERYONE who films “representations of sexual intercourse.”

    Please read R.A.V. vs. City of St. Paul. You will see my point. California can regulate the filming of actual sex. It may possibly be able to regulate something as nebulous and vague as “representations of sexual intercourse.” But it may not regulate such things ONLY when they are done “for the sexual stimulation of the viewer.” That would be a content-based restriction on speech and facially unconstitutional.

47. Here thing Alex FSC use same argument your useing fight LA ordinance in court as sue them right over the matter. Infact I would I be suprise if people pushing state bill are not waiting see if there law suite get toss out court before push hard make law. Diane Duke of FSC state same thing you said about LA ordinance before passed in the law did help her cause they still passed La ordinace in law. So state your argument did work for FSC in stoping La ordinace from become law in La. If did work there what makes you think gone work for rest of California??? Ever thing you have said about this all ready said million times buy FSC well they where fight La ordinace passed in your city. It took me little bet realize you are make same argument that FSC all,s used that lost voters in your owen home town. If ever meet Diane Duke asker how well your argument work for her when she used at ever Cal/Osha meeting she attend.

48. Here my proof Alex.
    LA County voters mandate condom use on porn sets

    LOS ANGELES (AP) – Los Angeles County voters have approved a measure requiring porn performers to wear condoms while filming sex scenes, prompting a pledge by the adult entertainment industry to sue to overturn the measure.

    With 100 percent of the county’s precincts reporting, Measure B passed 56 percent to 44 percent in Tuesday’s election.

    The measure requires adult film producers to apply for a permit from the county Department of Public Health to shoot sex scenes. Permit fees will finance periodic inspections of film sets to enforce compliance.

    The AIDS Healthcare Foundation, which sponsored the initiative, says the measure will help safeguard the public, as well as porn workers, from sexually transmitted infections.

    But the adult film industry, which is largely centered in the San Fernando Valley in suburban Los Angeles, says the requirement is unnecessary since the industry already polices itself by requiring performers to undergo monthly tests for HIV and other infections.

    The industry also says porn viewers will not watch sex scenes with condoms, forcing adult film producers to relocate to where they can make movies that will sell.

    On Wednesday, the Free Speech Coalition, a trade group representing the adult entertainment industry, said it plans to file a lawsuit to overturn the condom requirement on constitutional grounds.

    “We believe in the calm, serious deliberations of the legal system, we will find that Measure B is in fact unconstitutional,” Diane Duke, the coalition’s executive director, said in a statement. “The adult film industry will not just stand by and let it destroy our business.”

    In a letter sent to the county Board of Supervisors, the industry also requested that it be involved in discussions as to how the county will implement the requirements. It will also explore moves to neighboring states as soon as possible, the coalition said.

    “While the AIDS Healthcare Foundation has tried to portray any move of jobs outside of L.A. County as unrealistic, the hard truth of the matter is that is exactly what this industry plans on doing now,” said James Lee, communications director for the No on Government Waste Committee, which opposed the measure.

    Michael Weinstein, president of the AIDS Healthcare Foundation, said he is not fazed by threats of a lawsuit or of relocation. The issue is one of public health and safety for workers who run a high risk for sexually transmitted illnesses, he said.

    The industry argument did not convince voters, he said. “There was a very high degree of awareness about this proposition,” he said. “Voters were educated about it.”

    About 200 companies produce adult films in Los Angeles. A two-year health permit would cost about $11,000, comparable to permits for tattoo and massage parlors, Weinstein said.

    “We don’t want one more person to get HIV,” he said.

49. You seem to think that because the FSC made a constitutional argument, therefore it must be the same argument I am making here.

    You are incorrect. Duke and the FSC have been pressing the argument that ANY attempt to require porn companies to use condoms is unconstitutional. That is not my argument.

    However, after looking at the LA ordinance, it is clear that it is probably unconstitutional as well–if in fact it allows a mainstream hollywood company to shoot real sex WITHOUT condoms. However, I doubt that the argument I am proposing here has been seriously put before a judge, much less an appellate court.

    I think you are in too great of a rush to conflate all constitutional issues together. Actually there is a great deal of subtlety to them, and often a small change in the focus of an argument makes all the difference.

    My argument does NOT claim that the state cannot require condoms. My argument is that the state cannot require condoms ONLY for speech that contains a certain content or carries a certain viewpoint. And that, my friend, is a very elementary principle of First Amendment jurisprudence.

    Again, read R.A.V. vs. City of St. Paul. It may take a long time for a bill like 332 to become law and to be reviewed seriously by appellate court–probably years. But when it is, if it has the language that it has now, it will be found facially unconstitutional. It’s a textbook example of a content-based restriction.

50. Alex your funny event you say that should look at happen in St. Paul, Minnesota’s. Which a long way from California indusrty. The event which state that took place in R.A.V. vs. City of St. Paul. Real have nothing to do with how this bill write that about.R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) was a United States Supreme Court case involving hate speech and the free speech clause of the First Amendment to the Constitution of the United States. A unanimous Court struck down St. Paul, Minnesota’s Bias-Motivated Crime Ordinance, and in doing so overturned the conviction of a teenager, referred to in court documents only as R.A.V., for burning a cross on the lawn of an African American family. So if your going keep useing this as reason why porn bill not gone pass good luck with this. Your being silly as FSC on this issue. I rest mt case only time well tell which on of us right.

51. I’m afraid you are revealing your ignorance of how constitutional law works. The case is actually decidedly on point. If you think that only cases about porn apply to other cases about porn, then you really have no idea how law in this country works. Sorry.

52. Alex have very good idea how thing work in this matter assume court case took place 1993 that has no relevance to this bill how work is plain stupid naive think that gone work on this matter. You can tell me how stupid I am on thise matter as laugh at your argument when lose . I have heard same excuse you used buy FSC as lost all battles with AFH on these matter as they mange get them push through. I know how counrty works Alex as watch Obama pass health care bill through out counrty that has lots unconstitutional part in through high court in counrty. Make you ever body buy health care if want or not. So Alex when have buy health care becuase goverment say so or else you can tell how thing work.

53. Well who can argue with eloquence like that.

54. I hate to be negative Alex. You are obviously a very good lawyer or student of the law. By constrast, my ignorance is immense. But I just think we need someone more “real” than what you are proposing. 332 could be reformed to reflect the language in the law created by Measure B and I’m pretty sure that would pass without a hiccup. The problem lies in the politics as the muscle behind AHF is strong and their intimidation tactics are daunting (ie look at the district of the Rep. who is sponsoring the bill).

    I just think we need more reliable allies. Hollywood could give two shits about porn but I’ve always wondered why gay porn has been so quiet in the face of the AHF onslaught. What can we do to make gay porn more vocal against AB332?

55. excuse me, “something more ‘real’ than what you are proposing”.. I wish comment editing was on this site….

56. there should be a link at the bottom of the comment allowing you to edit it. you may have to mouseover the bottom of the comment for it to show

57. Alex may be you can hire very expensive eloquen republican press your agrument I here James Lee available. FSC spent loads money for him press there case for stoping Measure B in your city claim was unconstitutional cost to much money enforce prevent porn performers freedom not wear condoms. All that crap did stop voters or city make measure B law in LA. The same person who passed Measure B in your city behind state wide measure Weinstein AHF which means state wide bill comes from same guy who push Measure B in law in La county. In case have heard Alex Weinstein trying to set up new goverment organization enforce Measure B in La becuase he claim he can not get health deparment to do it. There is no differences between your argument and than one FSC used on Meaure B both use same claim laws where unconstitutional . Thing have change sent 1993 goverment was given alot power sent 911 event that you speak of . Waste enough time one this move on bigger better subjects here.

58. I think the ‘First Amendment’ argument is a red herring since it will not apply. ‘The for the purpose of….’ is simply a description of the activity at hand ie the production of pornography. This is, in the lawmakers view, a workplace safety issue and a director cannot have a performer engage in unsafe activity at work without taking all reasonable precautions. I think any court will determine a condom to be a reasonable precaution.

    I think the constitutional argument is an act of desperation that is bound to fail. If the industry wants to fight this they’ll need to find something better. What? i don’t know. Should they? I don’t think so.

59. @jilted the technique used to make a film are not free speech. The final product is. Not at all the same thing.

60. @Alex. In industry there are different regulations that apply to different industry due to the risks in the various industry. It is not uncommon at all for an industry to be singled out with a regulation. Just in the film industry there are all kinds of different regulations that apply to different people depending on their job description. Some people need steel toed boots, others need hairnets, yet others need paint masks. So I don’t think it is in anyway unconstitutional to force porn producers to force porn stars to use protection when plying their trade at the behest of the producer. Thinking this thing will go down on constitutional grounds is just wishful thinking and perhaps a way to line the pockets of a few lawyers.

61. @Alex everyone on a film set runs the risk of tripping over a light stand, it is only the people who WORK WITH THEM ALL THE TIME who are obligated to wear steel toe boots. Does this mean the electrics and grips are having their rights infringed on? No, of course not. It is risk based. Porn stars, by definition, have sexual intercourse ALL THE TIME which puts them at a higher risk than actors who do the odd kissing scene or even an on screen blow job once in their career.

62. It is absolutely correct that an industry can be singled out. It is absolutely correct that an industry can be regulated, even when it comes to methods of speech production. What the government may NOT do is single out an industry for regulation–ANY industry, ever–because of the viewpoint or the content of that industry’s speech.

    Please understand me: It is my opinion that California CAN very well require condoms in porn. But what it may NOT do is allow anyone who wants to shoot a film for purposes other than “sexual stimulation of the viewer” to shoot real penetrative sex, or whatever “representations of sexual intercourse” is supposed to mean in the law, without having to abide by the same safety measures. Put simply: The government cannot selectively impose restrictive burdens on the basis of the speaker’s viewpoint or the content of his speech.

    Again, R.A.V. is the controlling case. The government CAN prohibit the burning of crosses when such conduct (itself a form of expression) is likely to promote violence. The government MAY NOT prohibit the burning of crosses ONLY when it is likely to promote violence because of the particular viewpoint or content of the speaker (in that case, on the basis of race, creed, or gender). The law in that case was found facially unconstitutional, and the person convicted under it was absolved, because the law tried to single out speakers on the basis of the content of their speech. If the legislature had simply prohibited the burning of crosses when such conduct is likely to incite violence, then his conviction would have stood. But because the legislature took the further step of ONLY prohibiting racially motivated cross-burning, or gender-motivated cross burning, etc., the entire law was rendered invalid.

    I hope that clears things up for you. My position, you will see, is not the same as the FSC’s. I agree with you that California has the power to require condoms. It just can’t ONLY require condoms for those people whose speech is “for the sexual stimulation of the viewer”. That invalidates the entire law, just as it did in R.A.V.

63. For First Amendment purposes that is wholly irrelevant. And the fact that an industry can be regulated also entirely misses my point. I agree with you that an industry can be regulated. I agree with you that condoms can be required by anyone filming real sex. However, no industry can be singled out for regulation because of the CONTENT or VIEWPOINT of its speech. That violates elementary principles of First Amendment jurisprudence. You can’t ONLY regulate speech “for the sexual stimulation of the viewer” but allow “educational” or “artistic” films complete freedom to ignore those regulations.

64. You have badly misunderstood my argument. I do not claim that condoms cannot be mandated. My point is that, as the bill is currently written, it is facially unconstitutional because it singles out an industry, NOT (only) on the basis of its practices, but (also) on the basis of the viewpoint or content of its speech. As any first year law student can tell you, that will not fly. The bill may be easily amended to remove this constitutional defect–and then it would apply universally to any and all filmmakers, artists, educators, etc., that engage in “the representation of sexual intercourse,” or whatever that is supposed to mean.

65. Sorry about that Mike I did mean reap my self feel cut way part where repeat.