This was a comment that I promoted to a post (thanks BT) Because it hits the nail squarely on the head
I just read the lawsuit filed by Kayden Kross et al. What I find most interesting is that while it begins as a First Amendment lawsuit, the First Amendment is barely mentioned in the complaint. Moreover, they never really explain how the First Amendment is compromised. The complaint says that adult entertainment has been upheld as constitutionally protected speech. That ignores Miller, but whatever. How is the First Amendment compromised? The bill inhibits expression by requiring condoms during vaginal and anal sex. You can still have vaginal and anal sex wearing a condom, so, the only real First Amendment argument is: Yes, but I want to express unprotected sex in order to realize my vision. That’s the only real argument – as an artist, the vision I want to express is the joys of unprotected sex and I am inhibited by the use of condoms. That’s it. They also argue that the performers are consenting adults. But, again, by that argument, boxers could consent to fight without gloves while wearing nail-spiked brass knuckles and razor blades. However, the law doesn’t allow them to do that.
Their second argument is that Los Angeles doesn’t have the right to require condoms. Only the state can do that. But, the state has already said that state laws require condoms.
Their last argument is that the bill requires that porners get permits to film, that they display the permits and that people working on the set to get trained in the handling of blood-born pathogens. Hey, you have to get a permit to remodel your kitchen. I don’t get it. I may be a hassle to have someone take a class – my understanding is that just getting a porn performer to the set on time is a challenge – and it may impose start up costs, but you’re not requiring them to get bachelor’s degrees. Business are required to have employees trained all the time.
I read the lawsuit and what it says to me is: Hey, we’re renegades and outlaws and we have a legal right to operate as renegades and outlaws.
It seems pretty weak to me.
6 Responses
An Analysis of the Vivid Law Suit – Reader Mail http://t.co/A2Q9Rj33Nz
I assume this was in reference to the complaint? Do you by chance have a link to it?
For what it’s worth, regarding Miller, I think you’re mistaken. You wrote:
“The complaint says that adult entertainment has been upheld as constitutionally protected speech. That ignores Miller, but whatever.”
Actually, Miller simply stands for the proposition that *obscene* speech, which is notoriously elusive to pin down, enjoys no First Amendment protection. But adult entertainment as a general category has never been determined to be equivalent to “obscene” speech. In fact, plenty of sexually explicit pornography has been found NOT to be obscene–and therefore entitled to full First Amendment protection.
So just on that point, if the complaint states that non-obscene adult entertainment is protected by the First Amendment, then it is correct. Miller says nothing to the contrary.
Hey, Alex: Here’s the link. http://s3.documentcloud.org/documents/554514/vivid-lawsuit-against-los-angeles-county-condom.pdf
Agree entirely that I’ve probably simplified Miller – heck, maybe even misstated it. Also agree that what is and isn’t obscene is incredibly hard to pin down.
The thing that really struck me about the lawsuit was the argument that only the state has the right to regulate condoms on set, when the state has said that condoms are clearly required on set. It’s one of those, be careful what you wish for, you just may get it. Perhaps, they were banking that the state wouldn’t bother. At the same time, if the state passes the pending bill and makes condoms mandatory, that part of the lawsuit becomes moot, no?
The argument that actors are cosenting adults may be relevant in private sexual behavior – the state can’t really tell me how I can have sex in the privacy of my bedroom. Porn is not private behavior. Businesses can’t get away with asking their employees to do any old thing just because they consent to do it.
On the First Amendment, I do think the vision thing is potentially an interesting argument. But, can a director or producer who says: Condoms are optional on our set also say that a mandatory condom is a violation of their First Amendment right to realize their artistic vision? If their artistic vision is to depict unprotected sex, how can they make the use of a condom optional? Wouldn’t my decision as an actor to wear a condom also interfere with the realization of their vision? If the answer is no, then what’s the problem?
I don’t buy into the cost of compliance at all. Businesses have to comply with all kinds of stuff. The fact that a business may leave California over the cost of compliance shouldn’t be a factor – the mainstream television and film industry shoots outside of California all the time because of the cost of compliance with California law. If they won’t make exceptions for mainstream, why would they make exceptions for porn.
What APHSS Isn’t Telling You About: Sex Superbug Could Be ‘Worse Than AIDS”; Making Its Way in California
from http://www.cnbc.com – An antibiotic-resistant strain of gonorrhea—now considered a superbug—has some analysts saying that the bacteria’s effects could match those of AIDS.
“This might be a lot worse than AIDS in the short run because the bacteria is more aggressive and will affect more people quickly,” said Alan Christianson, a doctor of naturopathic medicine.
“Getting gonorrhea from this strain might put someone into septic shock and death in a matter of days,” Christianson said. “This is very dangerous.”
“It’s an emergency situation,” said William Smith, executive director of the National Coalition of STD Directors. “As time moves on, it’s getting more and more dangerous.”
This gonorrhea strain, HO41, was discovered in Japan two years ago in a 31-year-old female sex worker who had been screened in 2009. The bacteria has since been found in Hawaii, California and Norway.
Because it resists current antibiotic treatment, the strain has been placed in the superbug category with other resistant bacteria, such as MRSA and CRE. These superbugs kill about half the people they attack, and nearly one in 20 hospital patients become infected with one, according to the Centers for Disease Control and Prevention.
Though no deaths from HO41 have been reported, efforts to combat it must continue, Smith argued.
“We have to keep beating the drum on this,” he said. “The potential for disaster is great.”
According to the CDC, about 20,000,000 people a year contract a sexually transmitted disease (STD) and result in about $16 billion in medical costs. More than 800,000 of STD cases reported are gonorrhea infections, with most occurring in people between the ages of 15 and 24.
Gonorrhea is transmitted through unprotected sexual contact. Untreated, the disease can cause a number of health complications in women, including infertility. In men, the disease can be very painful and lead to sterility. It can also trigger other life-threatening illnesses, including heart infections.
Gonorrhea can be hard to detect. It often shows no symptoms in about half of women and in about 5 percent of men. Gonorrhea infection rates were at historic lows until two years ago, according to the CDC.
“That’s what’s kind of scary about this,” Smith said. “We are at lows in terms of infections, but this strain is a very tricky bug and we don’t have anything medically to fight it right now.”
Since 1998, the Federal Drug Administration has approved only four new antibiotics of any kind, according to the Infectious Disease Society of America. The last approval was in 2010. Only seven antibiotics are in an advanced stage of development—still years away from approval and use.
Recognizing the problem, Congress passed a law last year referred to as the Gain Act (Generating Antibiotics Incentives Now) to help speed antibiotic development.
But Smith said more needs to be done. In a briefing on Capital Hill last week, he urged Congress to target nearly $54 million in immediate funding to help find an antibiotic for HO41 and to conduct an education and public awareness campaign.
“I’m hopeful we’ll get the additional funds, but I can’t say for sure,” Smith said. “What I do know is we don’t have the resources to fight this as it stands now.”
Avoiding the disease completely is the best course, experts said.
“People need to practice safe sex, like always,” Christianson said. “Anyone beginning a new relationship should get tested along with their partner. The way gonorrhea works, not everyone knows they have it. And with this new strain it’s even more important than ever to find out. ”
All superbugs must be dealt with before it’s too late, he said.
“This is a disaster just waiting to happen,” Christianson said. “It’s time to do something about it before it explodes. “These superbugs, including the gonorrhea strain, are a health threat. We need to move now before it gets out of hand.”
Thanks for the link! I’m going to read it and, for better or worse, give my thoughts here later.
Thanks, Alex. I look forward to your thoughts. I’m not pro-condom as a consumer. I’d rather watch my porn without it. But, I’m anti-stupid.