by Curtis Isom, Founder/Editor-In-Chief
I care about the Adult Entertainment Industry and will defend any part of it when needed. This is one of those times.
The following is about California ballot initiative Prop 60 which is trying to impose new regulations on the Adult Film Industry. The vote on Prop 60 is on November 8, 2016. I strongly believe Prop 60 needs to be defeated because of the dangerous precedents it sets if passed. I suggest you read the complete initiative which can be found here: http://oag.ca.gov/system/files/initiatives/pdfs/15-0004%20%28Safer%20Sex%29_8.pdf?
For the rest of us outside California, this initiative should be viewed as a cautionary tale on how propose legislation can be a proverbial “wolf in sheep’s clothing”. There are numerous groups in California that oppose Prop 60. As per the AVN article, “AIDS Healthcare Makes False Claims In Prop 60 Ad” it states, “On the other hand, groups that have lent their names to the “No on 60″ campaign include the California Democratic Party, the California Republican Party, the California Libertarian Party, and civil rights and public health organizations including Equality California, the San Francisco AIDS Foundation, AIDS Project LA, the Los Angeles LGBTQ Center, the Los Angeles Commission on HIV, and the Adult Performer Advocacy Committee (APAC), the largest independent performer organization in the industry—and who better knows what performers go through in their duties than APAC?”
There is also an ad running against Prop 60 which you can see here: https://www.youtube.com/watch?v=87YgpSOm3gk
Even with all these groups, and others against Prop 60, if the word isn’t spread to help defeat it, uneducated voters can make a enormous mistake on November 8, 2016. In giving my viewpoint on this issue, I’m sharing with you EXACTLY the information I received from adult film actress Julia Ann which explains some of the major problems with this initiative. Afterwards, I’ll give my thoughts. In reading the following, the bold text in the italicized portions of this are proposed changes to current California Labor Code 6720.
“The California Safer Sex in the Adult Film Industry Act”
More about Lawsuits than safety
The proponents of The California Safer Sex in the Adult Film Industry Act (Act) have publicly described the initiative as a “worker protection” law; this is consistent with the messaging they used during past legislative efforts sponsored by initiative’s proponents. However, the ballot measure is significantly different than prior legislation and instead is designed to create a new private right of action.
- Michael Weinstein, President, AIDS Healthcare Foundation
- Active Initiative, 15-0004
- Title & Summary Issued March 18, 2015
- Signatures filed Monday, September 14, 2015
- Per http://www.cal-access.sos,ca,gov : Contributions made – $1,120,000
- AB 332 (Hall, Isadore) (2014)
- AB 1576 (Hall, Isadore) (2014)
Both AB 332 (2013) and AB 1576 (2014) largely focused on establishing a statutory condom mandate, record keeping, and reporting of HIV tests to state officials. The California Legislature stalled both proposals. The pending ballot measure is quite different . Proponents deleted the controversial testing and record keeping provisions. However, they inserted a private right of action that instantly grants millions of people authority to file lawsuits.
PRIVATE RIGHT OF ACTION TO SUE PERFORMERS, PRODUCERS AND DISTRIBUTORS OF ADULT FILMS:
* Private Right of Action: Every Californian has legal standing to sue
The Act establishes a statutory mandate requiring condoms in all adult films, webcams, live streams, clips or other adult content produced in California. The enforcement provisions are more expansive then prior efforts and typical labor laws. Generally, the state labor department or CaOSHA has the authority to enforce worker protection measures. The Act allows the State to enforce complaints. However, the Act also creates a new private right of action that can be filed by ANY RESIDENT OF CALIFORNIA.
Page 9: Section 6720.6. Enforcement; Whistleblowers; Private Rights of Action.
(a) Any person who violates any provision of this Act shall be liable via the administrative enforcement process, or via a civil; action brought by the Division or its designee, a civil prosecutor, an adult film performer aggrieved by a violation of Labor Code section 6720, or an individual residing in the State of California….(emphasis added)
Granting lawsuit authority to every California resident is rare and with out precedent. Pursuant to Proposition 60, any person can file a lawsuit. However, in theory, any person who is on premises or otherwise exposed to the dangerous chemicals should have the right to file a lawsuit. By Contrast the Act allows any California resident – who is not exposed to direct harm – to file a lawsuit. This will likely create a cottage industry of attorneys seeking to file lawsuits especially since the Act permits a plaintiff to collect 25% of any fie imposed by a court.
* Rebuttable presumption: Condoms not visible in adult films = liability
One of the questions that arises with the Act is how can one of the millions of Californians have enough information to actually file a lawsuit. The Act addresses this by simply creating a REBUTTABLE PRESUMPTION; a plaintiff only has to allege that a condom is not visible in a film to satisfy the legal burden. The are no requirements for a plaintiff to possess any information about how the filming was conducted, etc., nor does a plaintiff have to allege injury or harm.
Page 3: Section 6720. Health and Employment Requirements: Adult Film Industry.
(h) This section shall not be construed to require condoms, barriers, or other personal protective equipment to be visible in the final product of an adult film. However, there shall be a rebuttable presumption that any adult film without visible condoms that is distributed for commercial purposes in the State of California by any means was produced in violation of this section. (emphasis added)
By inserting a rebuttable presumption the proponents of the Act make it more likely for lawsuits to be filed. Additionally, it significantly increases the number of films that can be subject to a lawsuits since there are thousands adult films and adult content already in the stream of commerce that were produced before this Act would go in to effect. The Act does not require a plaintiff to allege that the adult film was produced after the enactment of the new law, so any of these films are also subject to lawsuit under this Act.
POTENTIAL DEFENDANTS – PERFORMERS , PRODUCERS, AND DISTRIBUTORS (INCLUDING: HOTELS, SATELLITE TV AND ISP?):
* Defendant: Any performer with financial interest , even an injured performer can be sued
The proponent of the Act has extended liability to not only producers but also performers who have a “financial interest” in the adult film. In decades past most performers were employees on exclusive contracts with studios. Currently, an estimated 95% of adult film performers are not on exclusive contracts and earn a form of royalties on the films, direct and produce their own films, own and exchange short clips, video chats, etc., and build their “brand” through a variety of social networks and economic structures. All of these performers have a financial interest in the adult film and would be liable under this act.
Page 3: Section 6720. Health and Employment Requirements: Adult Film Industry.
(i) Liability under this Act shall not apply to adult film performers, bona-fide employees, individuals providing independent contracting services, or production volunteers of an adult film producer who are acting within the scope of the general services being provided and in accordance with the instruction of the adult film producer, provided that such individuals have no financial interest in the adult film and are not adult film producers. Such individuals shall not be considered agents of the adult film producer for purposes of the Act. (emphasis added)
This provision again explains the universe of potential lawsuits. Many performers are concerned that stalkers or anti-adult film crusaders will drag them into court under this new private right of action.
Sadly, the proponents of this measure did not create an exemption for performers who may actually suffer harm on the set. Although there have not been any confirmed on-set transmissions of HIV in California for more than a decade, in the tragic event of such a transmission, the infected performer could him/herself be sued by rabid anti-adult film crusaders. The Act does not create immunity for injured workers.
* Potential Defendants: Hotels, Satellite TV, and internet service providers
The Act extends legal liability not just to producers and performers, but also includes any individual or business entity that distributes adult films in California.
Page 5: Section 6720.5. Agents of Control; Aiding and Abetting; Multiple Violations.
(a) Every person who possesses, through purchase for commercial consideration, any rights in one or more adult films filmed in California in violation of Labor Code 6720(a) and who knowingly or recklessly sends or causes to be sent, or brings or causes to be brought into or within California, for sale or distribution, one or more adult films filmed in California in violation of Labor Code 6720(a), with an interest to distribute, or who off to distribute, or does distribute, such film(s) for commercial purposes, shall be assessed a penalty of the greater of; (1) not less than one-half times, but not more than one-and-one-halftimes, the total amount of commercial consideration exchanged for any rights in the adult film(s); or (2) not less than one-halftimes, but not more than one-and-one-halftimes, the total cost of producing the adult film(s). (emphasis added)
So who is a distributor? While the proponents of the Act clearly intend to cover a broad category of businesses, they also include an exemption for “telecommunications companies.” This exemption provision does not include hotels, internet service providers, and satellite television or cable companies. With out a specific exemption these businesses are likely candidates to be sued.
* Private Attorney General: Only to be removed through “impeachment” process
The proposed initiative declares that in the instance where the State of California, or Attorney General, elects not to defend the Act, the proponents of the initiative shall have standing to defend the Act in any court as an employee of the State of California. This provision was included to avoid a ruling by the court that the proponents lack standing; like in Hollingsworth v,. Perry, where the courts ruled that the official sponsors of a ballot initiative, Proposition 8, did not have Article III standing to defend an Act or appeal a court ruling.
Page 12: Section 10. Legal Defense.
…In the event the Attorney General fails to defend this Act; or the Attorney General fails to appeal an adverse judgement against the constitutionality or statutory permissibly of this Act, in whole or in part, in any court, the Act’s proponent shall be entitled to assert his direct and personal stake by defending the Act’s validity in any court and shall be empowered by the citizens through this Act to act as an agent of the citizens of the State of California subject to the following conditions: (1) the proponent shall not be considered an “at-will” employee of the State of California, but the Legislature shall have the authority to remove the proponent from his agency role by a majority vote of each house of the Legislature when “good cause” exists to do so, as that term is defined by California case law; (2) the proponent shall take the Oath of Office under California Constitution, Article XX, §3 as an employee of the State of California: (3) the proponent shall be subject to all fiduciary, ethical, and legal duties prescribed by law; and (4) the proponent shall be indemnified by the State of California for only reasonable expenses and other losses incurred by the proponent, as agent, in defending the validity of the challenged Act. The rate of indemnification shall be no mre than the amount it would cost the State to perform the defense itself. (emphasis added)
This would be the first time that a private individual would by law be made into a state employee subject to removal by a vote of both house of the Legislature.
PRIVATE RIGHT OF ACTION IN ADDITION TO WORKERS COMPENSATION AWARDED TO INDIVIDUALS
* Creates standalone private right of action for injured workers in addition to a worker’s compensation claim
The Act allows performers, who may become injured at work due to a producer’s failure to comply with the Act, to file a standalone lawsuit for up to $50,000 and subject to yearly adjustments according to the consumer price index. This would be in addition to a worker’s comp claim. The lawsuit would only be for “personal” or “economic” injury not covered by the workers comp. A plaintiff could also recover costs and attorney fees.
Page 3: Section 6720. Health and Employment Requirements: Adult Film Industry.
(e) Any adult performer may seek and be awarded, in addition to any other remedies or damages allowed by law, a civil damages award of up to $50,000, subject to yearly consumer price index increases, if the trier in fact; (1) finds that the adult film performer has suffered economic or personal injury as a result of the adult film producer’s failure to comply with Labor Code sections 6720(a), (b), or (c); (2) makes an affirmative finding that the adult film producer’s failure to comply was negligent, reckless, or intentional; and (3) finds that an award is appropriate. The court shall award costs and attorney’s fees to a prevailing plaintiff in litigation filed pursuant to this subsection or subsection (f). Reasonable attorney’s fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff’s prosecution of the action was not in good faith. In the event that an adult film performer’s damages for economic or personal injury are covered by the adult film producer’s workers’ compensation insurance, this subsection shall not apply. (emphasis added)
Your head spinning? Let me simplify this: You live in California, this initiative passes, you watch an adult film, don’t see a condom used, you can feel “harmed”, sue the film, and get paid.
It should because there’s more at stake than making condoms mandatory in adult films. If you’ve read the FULL initiative, you’ll see the “wolf in sheep’s clothing” referred to at the beginning. This initiative is a threat to anyone who had participated in the making of an adult film – past and present. Kid you not. If you read the initiative, after wading through the “Let’s make the The Adult Film Industry responsible” beginning of the initiative, (which hopes to mislead and infuriate the reader) the initiative goes into how to make condoms mandatory in ALL adult films.
Are we fucking kidding me?
First, this is a dangerous initiative designed to cripple, if not destroy, the Adult Film Industry and eliminate jobs in California. DO NOT BE FOOLED!! The Adult Film Industry is very much proactive in keeping its performers safe and protected despite Mr. Weinstein’s claims. Performers are required to get tested on a regular basis and condom use in adult films is already handled by California’s branch of OSHA (Occupational Safety and Health Administration). You don’t test, you don’t work. Don’t use a condom, get fined. Honestly, I believe you’re more likely to get a sexually transmitted disease outside of the Adult Film Industry than you are in it. So why address something that is already addressed? Mr. Weinstein would like you to think the industry is irresponsible. He’s full of shit folks.
Second, another dangerous part of this is how the initiative inserts language to allow ANY California resident to sue adult film producers if the resident believes they are “harmed” by not seeing condoms being used in any adult film produced in the State of California. How is someone “harmed” in watching an adult film? This idea is beyond stupidity folks. But if this initiative passes, understand that this does not begin with films done after the initiative, the rebuttable presumption addition allows lawsuits to be brought against adult films produced in California before the initiative. This means ANY adult film produced in California going all that way back to the 70’s and before can be a subject of a lawsuit. Think I’m wrong? Go back and read it again carefully.
Third, in bringing a lawsuit against an adult film, the initiative gives the Plaintiff the ability to gain access to the PRIVATE information of ALL those involved with the making of the film in question. It’s how lawsuits work. Therefore, the performers and others can have their PERSONAL lives invaded by some nut job who doesn’t like what they see in an adult film. In addition, this bringing of these bullshit lawsuits will create an unnecessary additional burden on California’s court system. If this initiative passes, it creates a precedent for actions against other films as well. Think about it folks, it’s called “the domino effect”.
Forth, the initiative’s proponents have worked in another loophole to insure this initiative is enforced if passed. On the initiative’s Page 12, under Section 10. “Legal Defense”, the creation of new “State of California employees” may look and sounds good, but creates a so many problems. Think of what you go through to get a job. Resumes, applications, interviews, – this initiative does away with that. You get a job by suing an adult film and are only able to lose that job by a two-thirds vote of both house of the California Legislature. Wonderful.
Got to give them credit for trying to cover all bases.
I could go on and on, but I feel I’ve just given you enough reasoning why this initiative has to fail at the voting booth on November 8th. Although what I’ve addressed is just a portion of the initiative, it exposes these “wolves in sheep’s clothing” that need to be stopped before they get their “teeth and claws” into things they shouldn’t and good people have their lives invaded by nut job morons created by Mr. Michael Weinstein.
If you are still not sure, let me ask you this question: “Would you like someone to have the legal authority to invade your private life because they didn’t like the job you do?” Mr. Weinstein thinks so.
So spread to the word to any friends you have in California. Educate them on the dangers that Prop 60 holds not only on Adult Films, but the private lives of those involved in making those films. Your friends in California may think you’re being stupid standing up for the Adult Film Industry, but as the saying goes, “If you don’t stand up for something, you’ll fall for anything.”
It’s up to you folks, but you know where I stand.
On November 8, 2016, the residents of California said “NO” to Prop 60 thereby defeating Mr. Michael Weinstein attempt to harm the Adult Film Industry. Let’s hope he learns his lesson and stops this needless harassment of those working in the industry.