pornography

Post image for California’s Condom Mandate: Some Things Shouldn’t Be Up for a Vote

Some things should not be up for a vote. Among those things is whether consenting adults should be required to use condoms when they have sex. For many years, the AIDS Healthcare Foundation (AHF) has called for a mandate on condoms in adult films and recently collected enough signatures to add their legislation to the next city ballot. And last week the LA city council voted in favor of denying permits to adult films that do not abide by the condom requirement. While these efforts may be well-intentioned, a condom mandate violates actors’ rights to free speech, association, and choice—and likely will be counterproductive.

Current national workplace safety standards, as stipulated by the Occupational Safety and Health Administration (OSHA), require employers to provide personal protective equipment (PPE) for workers in hazardous situations—for example, hard hats for construction workers. Notably, OSHA laws provide exemptions for workers who refuse to use the PPE on religious grounds. Unlike many other OSHA protection rules, this condom mandate does not allow for any flexibility in the type of protection workers may use: it requires some form of barrier protection and would not allow actors to voluntarily not use the protection (though I doubt any actor would seek a religious exemption). While sexually transmitted infection is certainly a risk on adult film sets, a condom mandate is a one-size-fits-all solution that certainly doesn’t “fit all”.

As many in and out of adult film industry have noted, the mandate prevents actors and filmmakers from expressing themselves as they wish—a clear violation of the First Amendment. While “obscene” speech is not guaranteed the same constitutional protection as other types of expression, the adult industry as a whole cannot be lumped into the obscenity category. The “Miller Test,” which is used to determine obscenity based on the 1973 Supreme Court case, Miller v California, would have to be applied to every film before the state of California would have the right to restrict their expression.

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Porn actress, director, and self-described “kinky feminist,” Madison Young, spoke out in an interview with Salon.com about her feelings in the condom debate that has reemerged in the California adult film industry in the wake of recent news that an actor tested positive for HIV.

…I think [the push to mandate condom use in the industry] could be a mistake. Making condoms mandatory for all adult films is just as confining and dis-empowering as eliminating condoms as an option for performers.

While groups like the AIDS Healthcare Foundation (AHF) and arm-chair advocates want to refuse the choice of actors and directors about what is best for their own health and careers, Young is one of many industry insiders advocating for the rights of individual actors to choose whether or not to use condoms, another method of protection, or none at all.

As a director, I feel that creating a condom-optional policy for my talent works best. I shoot a lot of real-life couples that don’t use condoms in their personal life so they choose not to use them. Also sometimes women who have latex allergies or experience discomfort from using condoms opt not to use them in their scene. But they always have that choice.

Young joins the ranks of other directors and stars speaking out for freedom of choice in spite of the very real threat of sexually transmitted infection (STI). While disease is a frightening and dangerous possibility for those in the adult entertainment business (as well as anyone else engaging in sexual activities), Young and others seem to recognize that an even scary and harmful prospect is the infringement on the freedoms of speech, expression, and the elimination of personal choice.

As a self-made business mogul, a mother and wife, and a cancer survivor, there are many aspects of Jenna Jameson to admire and emulate. That said, I’m not looking to Jameson’s movies for advice on safe sex; just as I wouldn’t turn to Martin Scorcese for lessons on how to be a successful cab driver in New York City. Movies are works of art, fiction, and fantasy. The argument that condoms should be made mandatory in pornographic films due to viewers potentially imitating what they see on screen is logically indefensible and somewhat shocking, considering that it is written on a site that regularly publishes articles defending freedom of speech, free expression, and keeping government out of the bedroom.

Kellee Terrell’s article, posted on Huffington Post yesterday, gives us a glimpse into the type of thinking that leads many intellectuals to advocate at one time for social liberty while at the same time demanding that government intervene in the personal choices of others. It stems from a condescending disbelief in the ability and the right of the average individual to make choices about their own life.

Why the Porn Industry’s HIV Problem Is Our Problem, Too:

While it is obvious that not using condoms on porn sets is a safety hazard, I have often wondered: How much of a safety hazard is it for viewers to consume condomless porn? How much does watching bareback sex influence or reinforce our desire to mimic that same behavior in our own lives?

…I am not so naïve as to believe that if the porn industry were to make condom use mandatory, that act alone would completely revolutionize how Americans view safer sex or condoms. But it cannot be denied just how powerful media is …

Perhaps now is the time for the porn industry to make some changes in terms of safer sex practices — not just for the sake of their own employees, but for the sake of all of us.

It is not the porn industry’s responsibility to teach anything to anyone. They make films and money. We can call them artists, or business people, and though some may release instructional videos, it isn’t fair to label them as custodians of anyone’s sexual decisions.  It may be interesting to examine possible correlations between behavior and viewing habits, but even a evident connection would not make actors, directors, or producers culpable for that behavior.

Based on Terrell’s logic couldn’t the argument be made that we ought to ban films and TV shows that feature rebellious youth (i.e. My So Called Life), dangerous driving (Rebel Without a Cause) or victimization of women (everything on the Lifetime TV Network) lest someone takes them as guidance for their life choices?

Obviously, this isn’t the case. It may seem incomprehensible that the same people arguing for a condom mandate are the same people who would normally scream at the top of their lungs if the government tried to regulate bedroom activities. However, because pornography is an issue of capitalism, of “big business,” they look upon the actors as victims in need of protection-whether they want it or not.

It is not the government’s right to regulate how adults engage in sexual activity; we each can and should take responsibility for our own sexual safety. And, as Jenna Jameson has proven throughout her career, adult film actors also should be left free from government interference to make the decisions that affect their lives and career.

Note: Jenna Jameson appears to favor either a condom mandate or at least some stronger regulations on set.  That doesn’t affect her status as a sharp business lady, but, like I said, I’m not looking to her for safe sex advice–nor am I looking to her for regulatory analysis.

The most recent case of porn actor testing positive for HIV has renewed calls (or at least media attention to the calls) for a condom mandate in all adult films produced in Los Angeles County.

Last year, activists at the AIDS Healthcare Foundation petitioned California’s Division of Occupational Safety and Health and unsuccessfully sued the county Department of Public Health to put a condom mandate in place claiming that it was an issue of worker safety.

However, the decision should be left up to the production companies and the actors themselves to determine the best way to protect themselves, their companies, and their reputations.

While this latest case has certainly caused some concern among adult performers in California, most of the calls for a condom mandate are coming from outside observers. Furthermore, many actors, such as the renowned adult actress Nina Hartley, have come out against taking away the choice from performers:

“As someone who is still working on the camera myself, I don’t feel any safer with condoms,” she said at a hearing in downtown Los Angeles in June.

Many of the actors in the business oppose the proposed mandate for condom usage. Some even claim that condoms make exposure to HIV and AIDS more likely due to “rubber rash” and friction burns, especially for female performers.

Ernest Greene, a longtime director and Hartley’s partner, explains on his blog:

[A single scene amounts to] over two hours of intercourse in various positions with constant stops and starts during which male performer’s erections rise and fall, condoms frequently tear or unravel and the degree of latex abrasion on the internal membranes of female performers’ vaginas lead to micro-abrasions that make them more vulnerable to all kinds of STIs. Most condom-only female performers eventually abandon condom use, not under pressure from producers, but rather because of the constant rawness and end-on-end bacterial infections produced by countless hours of latex drag.

In addition to problems with enforcement, there’s also the problem of personal choice and freedom of expression. In the end it is the individual actor’s choice to get into the adult entertainment industry and their choice whether or not they wear a condom.

At the same June hearing with Nina Hartley, an adult film actor who goes by the name Jeremy Steele, put it best when he said:

“There is no way to make the industry risk-free. Making things safer does not make it safe. If you’re worried or paranoid, you should not be in this industry.”

As so many journalists have punned, recently passed anti-stripping legislation makes the “Don’t Show Me” state a far more appropriate nickname for Missouri. Yesterday, Gov. Jay Nixon ‘s signed into a law a bill that significantly restricts the operations of adult entertainment establishments for the purpose of protecting the “vulnerable people who are being coerced into being the fodder for some of these places,” said state Senator  Matt Bartle.

Among other things, the new laws prohibit total nudity, restrict semi-nudity to state areas six feet away from patrons, prohibit touching, ban alcohol, and limit the hours of operation of such establishments.

What most people don’t realize is that strippers usually aren’t under contract with any particular club and, generally, operate like contractors, paying a stage fee or a house fee to the club which is deducted from whatever they earn while dancing. These laws simple mean that strippers will have less time to work, fewer clubs to dance at, and fewer customers.

Proponents of the bill claim that liberal laws regarding adult entertainment in the state contribute “demeans women and contributes to prostitution.” But treating women as if they are children or mentally incapable of making their own choices is better? In addition, these restrictions will simply result in less income for current strippers which could very likely result in more prostitution not less.

A quote from a representative of the Missouri Coalition Against Domestic and Sexual Violence says it all:

“One of the ironies is that, for many young women, it is the way that they can support themselves, maintain custody of their children, or escape an abusive relationship.”

If regulators really wanted to help the poor strippers they should decrease regulations and taxes on other industries so that more businesses will open in the state. Maybe then strippers will have more opportunities to switch into another profession, if they want.

Proponents of this law aren’t trying to help women, they are trying to control them.

“What is freedom of expression? Without the freedom to offend, it ceases to exist.”
—Salman Rushdie

Today it was announced that the ACLU has filed a lawsuit in Pennsylvania as a result of their investigation of the nearly 800 citations doled out by police officers in the last year for disorderly conduct.  The ACLU claims that many of the citations involve cursing and other behavior that is not obscene and therefore protected by the first amendment.  According to the ACLU the major problem is that officers are not properly trained to understand the difference between the vernacular term obscenity and the legal definition of obscene speech not protected under the 1st amendment. The real problem isn’t, as ACLU lawyer  Marieke Tuthill put it, that officers aren’t trained to understand the “difference between the colloquial definition of obscenity and the legal definition.”

The real problem isn’t that obscenity isn’t defined, the problem is that obscenity–not matter how it is defined remains unprotected.  Either speech is an inviolable right or it isn’t. To say that sometimes speech is a right and sometimes not is to say that it isn’t a right at all.  The result of this lack of absolute protection of speech allows government agents to silence average citizens under the guise of curtailing obscenity. It also allows federal agents to put pressure on citizens who have the misfortune of falling under it’s purview. One such person, John Stagliano, has had the misfortune to learn first hand about the limits of the first amendment.

The right to offend: Under current judicial interpretation, obscene speech that would not be protected under the first amendment is determined if  “it would be found desirable to the prurient interest by an average person applying contemporary community standards, depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value.” This is called the “Miller test“.

We’ve all heard it a million times, but it warrants repeating: The first amendment declares:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

And according to the incorporation doctrine, this amendment along with several others also applies to state and local governments. So, no government body can make rules that would abridge (that is lessen, diminish, or curtail) free expression.

delacroixxxWhat’s a community–how is it determined? Who determines what art is? What offends? How many people have to deem something offensive for it to become a “community standard”? In other words, how many people does it take to strip a minority group of people of their right to free expression?

The purpose of the first amendment is to allow people to freely express their ideas without coercion from the government to prevent tyranny. If we allow “offense to community standards” to be an adequate justification for the violation of a citizen’s right to free speech we are simply allowing the community to become that tyrannical state.

“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” ~Justice Anthony M. Kennedy

There are plenty of problems with the financial “reform” bill, but the media aren’t interested in that.  They’re much more interested in revelations that senior enforcement staff at the federal Securities and Exchange Commission, which would gain new powers under the bill, spent many hours looking at porn on their office computers.

The porn issue certainly deserves some attention, given just how much time some SEC staff wasted looking at porn at taxpayers’ expense: “A senior attorney at the SEC’s Washington headquarters spent up to eight hours a day looking at and downloading pornography. When he ran out of hard drive space, he burned the files to CDs or DVDs, which he kept in boxes around his office.”  You have to wonder if this kind of inattention to its duties led the SEC to ignore the $50 billion fraud by Bernard Madoff, which was repeatedly brought to its attention to no avail, and the multi-billion dollar Ponzi scheme committed by Robert Allen Stanford.  But it probably didn’t.

While the media, including the New York Times, has reported on the porn, it has largely ignored substantive criticism of the financial “reform” bill, which is a Trojan horse that would reinforce risky practices that led to the housing bubble, while ignoring needed reforms, harming insurance policyholders, and giving executive branch officials arbitrary power to bail out or take over banks and financial institutions.

As journalist Matt Welch notes, Obama “is lying his face off about financial reform.”

President Obama has collected millions from Wall Street special interests, his administration contains many Wall Street lobbyists, and he supported the unnecessary $700 billion bank bailout.  But now, he’s pushing a deceptive financial regulation bill with phony rhetoric about “reform,” claiming it is “not legitimate” to point out that the bill could lead to yet more bailouts and government takeovers (as economists and banking experts like Peter Wallison have demonstrated).

Obama’s legislation would do nothing to rein in the worst offenders behind the mortgage crisis, the government-subsidized mortgage giants Fannie Mae and Freddie Mac, even as it would enrich the politically-connected liberal Wall Street firm Goldman Sachs (recently accused of fraud), enrich left-wing lobbying groups and community organizers, and give the government the permanent ability to bail out and take over Wall Street firms.

Obama’s proposed financial rules overhaul does absolutely nothing about Fannie Mae and Freddie Mac, admits Obama’s Treasury Secretary, tax cheat Timothy Geithner, even though he admits that “Fannie and Freddie were a core part of what went wrong in our system.” Worse, the Obama administration lifted the $400 billion limit on bailouts for Fannie and Freddie, so that they could continue to buy up junky mortgages at taxpayer expense, and showered their executives with $42 million in compensation.  The Obama administration is now expanding the bailouts of these mortgage giants so that they can lavish pay on their CEOs and reduce the payments of deadbeat mortgage borrowers.  (At the direction of the Obama administration, Freddie Mac is now running up $30 billion in lossesto bail out mortgage borrowers, some of whom have high incomes.  Federal regulators sought to make Freddie Mac hide the resulting losses from the SEC and the public.)

Fannie and Freddie helped spawn the mortgage crisis by acting as loan toilets, buying up risky mortgages and thus creating an artificial market for junk.  “From the time Fannie and Freddie began buying risky loans as early as 1993, they routinely misrepresented the mortgages they were acquiring, reporting them as prime when they had characteristics that made them clearly subprime.”

Why did they buy these risky loans?  They put up with Clinton-era affordable-housing regulations that required them to buy up lots of risky loans, in order to curry favor on Capitol Hill and thus retain their annual $10 billion in tax and other special privileges (which they possessed owing to their status as “Government-Sponsored Enterprises” or GSEs). They paid their CEOs millions in the process, and engaged in massive accounting fraud — $6.3 billion at Fannie Mae alone — to increase the size of their managers’ bonuses.  As GSEs, they were exempt from the capital requirements that apply to private banks, so they did not have enough reserves to cover their losses when their mortgages started defaulting.

Banking expert Peter J. Wallison, who prophetically warned against the risky practices of Fannie Mae and Freddie Mac for years, says that Obama’s proposals will lead to “bailouts forever” and give big, politically-connected banks that are “too big to fail” the ability to drive smaller rivals out of business at the expense of consumers and taxpayers.  His colleague Alex Pollock notes that Obama has not lived up his Administration’s claims that it would back reform of Fannie Mae and Freddie Mac.

Obama claims that it will not lead to more bailouts, but even congressional Democrats admit that it will.  As Congressman Brad Sherman (D-Calif.) admitted, the “bill has unlimited executive bailout authority. . .The bill contains permanent, unlimited bailout authority.”

Government pressure on banks to make loans in economically-depressed neighborhoods was another key reason for the mortgage meltdown and the financial crisis.  If Obama has his way, that pressure will increase.  The House earlier approved Obama’s proposal to create a politically-correct entity called the Consumer Financial Protection Agency. “The agency would be in charge of enforcing the Community Reinvestment Act, a law that prods banks to make loans in low-income communities.”  It would do so without regard for banks’ financial safety and soundness, even though the Community Reinvestment Act was a key contributor to the financial crisis.

Obama’s proposed financial regulations would also harm retail banking operations used by middle-class people and small businesses.

Judges in California continue to surprise observers nationwide by repeatedly making rational decisions. At least, rational decisions about the adult film industry in the state. Over the last three months, Los Angeles County judges repeated denied petitions to force porn production companies to use condoms in all of their films.

As I wrote back in December not only is this mandate constitutionally questionable (hello, free speech issues), but it will not work and the end result will be the film industry continuing its exodus from CA to states with more loose regulations, such as Nevada.

The group pushing for the state-wide mandate is the AIDS Healthcare Foundation, which has a long standing history with the gay community. As I wrote in the LA Times, it is particularly surprising that the group pushing for regulation of sexual activities is an organization deeply familiar with the problems associated with government’s involvement in sexuality.

Let’s just hope that California judges continue to think with the heads and deny this mandate.

(Picture via boing boing)

One reason people enjoy pornography (apart from the obvious benefit) is that it allows them to fantasize about activities in which they cannot or do not engage in their real sexual lives. One of those fantasies is sex sans protection: adult films almost exclusively feature actors having unprotected sex–something the AIDS Healthcare Foundation (AHF) wants to put a stop to for California adult film studios. The organization today will file a petition at the meeting of California Occupational Safety and Health Standards Board asking them to include a condom requirement in their rules applying to adult film workers.

Will this improve the rate of STD infection among adult film actors? For those who stay in CA and can find work, sure it probably will. But banning all porn would be even more effective, but it doesn’t mean we should do it.  Before adopting even more regulations for the industry I’d like to point out a few facts:

This is a form of censorship. Whether or not one considers pornography “art” it is a form of communication that the government should not be able to alter or censor in any way.

Allowing the government to regulate sexual activity among consenting adults, even if it is “acting” sets a very dangerous precedent. After all, what constitutes porn or a working environment? What if the “actors” are a husband and wife team with a home movie recorder or woman with a bedroom camera and her own pay-per-view website?  The government does not belong in our bedrooms, boardrooms, or studios.

Production companies could very easily leave California for nearby Nevada or other states with friendly regulations and taxation. Perhaps Delaware will be the new adult film capital of the world. Beyond the fact that it isn’t the place of government to legislate how private companies conduct their business, these regulations could drive away millions of dollars in tax revenue and jobs.

Of course porn actors have increased incidents of STDs. They have sex for a living! Expressing outrage over that fact is like being surprised that logger are more likely to lose limbs or postal workers are more likely to get paper cuts than the general public. The possibility of STDs goes along with the territory–it’s an occupational hazard, but one that actors and studios can and do mitigate against by upholding their own standards of testing and safety. It is telling that the AHF petition notes that multiple cases of STD transmission in the adult film industry occurs in the same people.

AHF claims that not forcing actors to wear condoms creates an unsafe working environment in violation of OSHA regulations. I was unable to obtain the list submitted by AHF of adult films they submitted as proof that CA’s porn industry creates an unsafe work environment for the actors…but I’m willing to bet that the these films violate a whole bevy of other OSHA regulations.

Trying to mandate how x-rated films are made is silly and won’t work, it will simply drive the studios to move out of the state.

Marginal Revolution’s Alex Tabarrok points to a proposed rule in California that would reclassify adult film actors as being subject to certain employment regulations. The unintended consequences are potentially fatal:

California’s anti-discrimination laws prohibit requiring an HIV test as a condition of employment; therefore the adult film industry’s current testing process, in which every performer is tested for HIV monthly, would be illegal. Nor would adult film producers be allowed to “discriminate” by refusing employment to HIV-positive performers. As a result, untested and HIV-positive performers would be able to work in the industry, raising the risks of HIV outbreaks–particularly since condom breakage or slippage can occur.

Sounds like regulators and activists need to think that one through a little more carefully.