Way back in 1987 a pornographer by the name of Hal Freeman was charged and convicted of pandering, the procurement of persons “for the purpose of prostitution”, by the state of California.
Freeman appealed the conviction to the CA Court of appeals and lost. Freeman then appealed to the California Supreme Court, which subsequently overturned his conviction, finding that the California pandering statute was not intended to cover the hiring of actors who would be engaging in sexually explicit but non-obscene performances.
The State of California unsuccessfully tried to have this judgment overturned by the United States Supreme Court. Justice Sandra Day O’Connor denied a stay of the California Supreme Court’s judgment, finding that its ruling was founded on an independent and adequate basis of state law. The full Court subsequently denied the petition for review.
As a result of this precedent, the making of hardcore pornography was effectively legalized in California.
What is surprising to me is that porn has been legal in California all that time but was essentially ignored by city and state regulatory agencies for 25 years. It usually doesn’t take that long.
Admitted OSHA generally doesn’t get involved unless there is a complaint and my OSHA guy tells me that if a business has fewer than 10 employees OSHA doesn’t require any record keeping.
Back in Freemans day porn was a much smaller circle of people and what self regulation there was stayed within that circle so people didn’t much get upset about it, but it seems that particularly with the internet that circle of people grew exponentially and with it came an exponential growth of the problems, particularly STDs. Before HIV getting cured of an STD wasn’t that expensive and was quietly done but HIV changed all that.
When people in porn started showing up HIV Positive the industry didnt have the desire to look after them so the end result was to say they got it from drug use or gay sex and its not out problem, the industry disassociated itself from these performers and that was that, eventually they died.
As medical advances made HIV a more manageable condition and a very expensive one the industry still had no desire to look after its own so people who got HIV ended up getting dumped into the lap of charities and non profits, the main one being AIDS Healthcare Foundation, whose charter was to help and to aid in prevention.
In the end I expect AHF got tired of paying for porners mistakes and began to push back and in doing so drug in a reluctant OSHA and Local and state health departments and here we are.
The industry seems to think it can solve its problems by moving the industry someplace else, like Las Vegas or Florida but only a real simplistic and unintelligent person would think that that option would work. There are already moves in both states to bring OSHA regulations down on companies shooting adult, OSHA laws are federal and if they get pressed by AHF or anyone else they will be enforced.
For all of the blustering about moving by the industry it seems that porners really do get that and have decided, and wisely so, to make their stand in California, the problem is that porn has neither the money nor the savvy to make a successful stand, porn gets steamrolled at every intersection by AHF because AHF is better funded and mostly because AHF much smarter at these things.
In a recent move lawyers are threatening to file suit against AHF for libel on behalf of Kink.com. Tynans reasoning being that AHF claims that transmissions happened on set are libelous because according to her they didn’t. personally i don’t see this strategy flying for the simple reason that AHF has two former performers, both of whom claim on set transmissions since 2004 in their employ and for all the foot stomping by Diane Duke saying the transmissions didn’t happen on set when the performers stand up in court and say oh yes it did I dont see this libel suit being anything other than a waste of Kinks money. Additionally such a lawsuit would open up Kink.com and Peter Acworth to discovery and deposition, something I dont think they really want to do.
In yesterdays Vice.com article on Rosebud porn I made the observation that “Companies in porn are like blackbirds on a phone wire. When one takes off they all follow. I think, in this case, they all followed into the side of a glass building.”
I got a lot of kudos from porners for that and i guess it is a good quote that pretty aptly describes how porn has gotten away from it’s core audience but in the context of this article I expect that glass building is a government building….
12 Responses
The Chickens Have Come Home To Roost http://t.co/FCORAraMXV
Weintsiens reply to Tynans empty threats, “Bring it on.” Weistien would love nothing more than to ask Ackworth questions, under oath.
Bullshit. Tyan is a ambulance chaser and a sore loser attorney.
The porn industry isn’t going to change and Ackworth doesn’t give
a flyin fuck about the performers and the order sounds like another
bluff. KINK.COM is doomed.
Shalom
“…HIV ended up getting dumped into the lap of charities and non profits, the main one being AIDS Healthcare Foundation…”
Mike, AIDS Healthcare Foundation is neither a charity nor a nonprofit.
“What is surprising to me is that porn has been legal in California all that time but was essentially ignored by city and state regulatory agencies for 25 years. It usually doesn’t take that long.”
2014 marks ten years that Cal/OSHA has had a page on their site dedicated to adult film performers. Coincidently it also marks the decade that porn loves to bandy about…no onset transmissions.
A kink.com spokesperson shows up here in comments and trashes what an independent producer is doing because he has no proof of his safety record. Lmao…kink.com nor FSC is a regulatory body and they can’t prove their safety record either.
Loved the latest spin by Acworth …performers are tested…all that kink.com MSM content must be made with figments of our imagination then…cus they aren’t tested.
Bottom line…the industry had 18 years to tailor the 1992 BBP to their needs and didn’t. Five years after the Freeman decision BBP came along without an exemption for porn. In the absence of industry created non-discriminatory effective policy OSHA responded to complaints with a ten year cat & mouse game with FSC and porn stakeholders that got very ugly five years ago.
BTW…the 1998 Onset HIV case took ten years to make its way thru the courts.
As for Tynan’s cease & desist letter to Weinstein for Acworth…she might want to hold off until SCOTUS hears and rules on the pending OHIO case re political lies during an election process, aka public figure slander and libel. SMH and wondering if Weinstein is gonna call their bluff and file first.
Going back to the days of Derrick Butts and others that became HIV+….
If the powers that run porn had taken a different road instead of denial and taken care of their performers that were unfortunate enough to get the disease I doubt they would be in the position they are now (OSHA and AHF all up in their business).
the porn industry’s track record of how they treat performers who test positive for HIV is well documented. Thrown out like yestedays garbage, and mercilessly attacked in the industry press. But these performers do have ONE thing in common, the AHF is there to pick up the tab. Exactly what did TTBoy do for the three people for whom it was proven beyond ALL doubt were infected on his set?
So, here’s the deal with how a libel suit works, especially when you’re dealing with a public company. I don’t mean a company that is publicly traded on the stock market, but a company that is very much in the public eye.
First, I’m not sure that a company can claim that it has been libeled. Mr. Ackworth certainly can. But, let’s assume that Kink can sue. A couple of things: Remember that Kink has made notoriety and outrageousness a part of its business plan. It operates a dungeon. It publishes video clips designed to outrage, inflame, engorge, disgust, and excite the public. It does not fly under the radar. In that regard, its tough to argue that its OK for Kink to be outrageous in its business, but not to say something outrageous about its business. But, hey, I’m not an attorney.
So, it is, in essence, a public figure. What then does a public figure have to prove?
First, it has to prove that AHF and/or Weinstein knew or should have known that the allegations it made against Kink were false.
Second, it has to prove that AHF and/or Weinstein made the allegations against Kink even though it knew they were false – they were made with a reckless disregard of the truth.
Third, it has to prove that AHF and/or Weinstein not only made them knowing they were false – they did so with the sole intent of damaging Kink and Ackworth. That’s called malicious intent.
Finally, and this is key, even if the allegations are false; even if they were made with reckless disregard for the truth to get ’em, Kink has to demonstrate that it has suffered demonstrable and quantifiable economic harm as a result of AHF’s/Weinstein’s allegations. There has to be economic damage directly tied to the allegations. There has to be a cause and effect. That’s the law.
Public figures – and public companies – almost never win libel suits. The bar is incredibly high. So, good luck with that one.
And, Mike, you are correct about discovery. If Kink is going to file suit, then Kink will have to cooperate with discovery. It will have to open its books to financial scrutiny to prove economic harm. And, it will have to open all of its records related to performers, injuries on set, diseases, etc.
Even if it wins, its likely to be a phyric victory from a financial standpoint and could very well lead to other regulatory actions against Kink.
Be careful what you ask for, Mr. Ackworth. You just might get it.
Speaking of Karen Tynan. What work did Tynan do for AIM that she is shown to be owed over $8,000.00 in AIM bankruptcy filings? And another question would be how much did they pay her, before they stiffed her for 8grand? Was she writing IPP plans for PRODUCERS, and getting paid by PERFORMER money?
Keep your eye out for the Ohio politician case that SCOTUS is going to hear. It centers on knowingly making false or intentionally misleading statements with malice to gain an advantage over a political opponent…the higher threshold public figure that BT laid out nicely above.
It may have come across as snark because porn used pending Measure B appellate litigation to try and stave off AB1586 but it’s more about the things laid out above as well as use war chest & judicial resources wisely.
With five years of mounting porn friendly media attacking Weinstein and AHF the depositions alone would read like a ShoTime weekly drama. Reporters can shield their sources but that’s a hard defense when deposed under oath re named & quoted sources. Once those depositions are done it gets really fun with AHF trying to depose Tynan who will claim client privilege and fall into a nice can of worms….stay tuned to as porn vs the big bad wolf continues.
LurkingReader: I never thought of the Susan B. Anthony case you’re referring to. Right now, its in relation to an Ohio state election law that makes it illegal to lie to prevent the election of a political opponent – a guy running for Congress supported Obamacare; SBAnthony lied and said that Obamacare would require taxpayers to pay for abortions, hence the guy supported federally-funded abortions. SBAnthony’s argument is that even if it was a lie, its protected under the First Amendment and the Ohio law is an unconstitutional attack on the First Amendment. Although I don’t know if California is one of them, other states have similar laws.
The whole Kink/AHF/Weinstein thing has occurred in the shadow of a political campaign related to the condom bill, but Kink was not a candidate, so I don’t know if a ruling would be directly applicable if it overturned the Ohio law and SCOTUS says: Yeah, sure in a political campaign, its OK to lie.
The other point – I don’t think even if overturned, the law would give you cover to libel someone who was not running for office because they were aligned with someone who was. But, its an interesting question.
What is clear here is that if Kink does indeed file a lawsuit – a big if – Kink will have to clear the public figure hurdle. For example, one test of a public figure is whether you have knowingly thrust yourself into the middle of a public issue. In other words, someone who is photographed walking down the street in front of a bank when a robbery takes place and is misidentified as the bank robber by the media is not a public figure – they’re just minding their own business and the media put them in the spotlight. Someone walking down the street who then goes up to a reporter and says: Hey, I saw the whole thing if you want to interview me. Here’s my home number has thrust themselves into the spotlight.
When it comes to the issue of HIV/STDs/condoms and porn, Kink has thrust itself into the middle of the issue. It’s on the board of the porn association fighting the bill; Ackworth has given news interviews on the issue; he’s made public statements about Kink’s safety records; he’s made public statements about the infamous Cameron Bay shoot; he’s been a notorious figure in the news because of gun and drug busts – although that may be carved out of a lawsuit as irrelevant to STDs; and he’s made statements about his financial position, stating that it would make more financial sense to move his business to Las Vegas and turn the Armory into a commercial development as a direct result of condom regulation. Finally, he’s embroiled in a todo with OSHA regarding his safety record.
In short ….. he’s not only public, he’s public about his safety record and his finances. He’s opened the door to a huge fishing expedition into how he operates.
No one welcomes a lawsuit because of the expense associated with just getting rid of it, but if you’re AHF, you probably don’t shy away from this fight should it come. You file as many requests for discovery as possible as quickly as possible and hope that Kink turns over records before its all over. Those records potentially become part of the public record for anyone to pore over.
Sorry to keep beating this dead horse, but ….. the most important court case to watch re: porn is not a potential libel suit filed by Kink. Its the ruling we’re waiting for from the appeals court in the Vivid suit. If it upholds the trial court judge, it takes the First Amendment off the table for the purposes of condoms. This is huge because it opens the way for much regulation re: the health and safety of talent beyond condoms. It will say that the First Amendment does not trump worker safety. Remember that Vice.com article Mike just posted? Asked about the potential for permanent harm to their bodies, actresses threw up their hands and more or less said: What can you do? They make us sign a release. I’m just telling you that employers cannot make you sign a release that waives them of responsibility for your injury if they hire you for a scene that they know is dangerous to your health with no precautions in place – and, when it comes to a prolapsed rectum, there’s no precaution you can put in place to do that safely.
Second reason its important is that it sets the stage – if Vivid or the county loses and is willing to pursue the case further – for the potential of a SCOTUS review. It would not be to whether the content itself is protected, but whether pornographers have carte blanche First Amendment rights to film anything, regardless of the health and safety of talent.
You want to keep your eye on the ruling coming out of that case. A potential Kink libel case is fun, but it is a distraction.