LAS VEGAS—As is usually the case with legal panels at the AVN Adult Entertainment Expo, getting important information to the industry on the legal, political and social issues that affect them can easily take more than the allotted hour. At the January 16 seminar, moderator Tom Hymes let the attorneys talk for an extra 30 minutes—and it still was barely enough.
This year's panel had more than its share of high-powered legal talent: AVN columnist and Las Vegas resident Clyde DeWitt, anti-Measure B lead counsel Paul Cambria, 2257 expert J. Michael Murray, Florida-based all-around First Amendment proponent Lawrence Walters, and Los Angeles-based entertainment attorney Michael Fattorosi.
Hymes first called upon Murray to update the audience on the latest happenings with the federal recordkeeping and labeling law, 18 U.S.C. §2257, which gave Murray a chance to recap both the history of the industry's fight against the law and also the trial on the industry's lawsuit that took place before Judge Michael Baylson last June.
"The law is still in effect," Murray warned, "and tomorrow, the FBI could be at your doorstep, so we can't be lulled into a sense of false security here."
Murray dissected the evidence presented at trial, noting that even sexting photos requires 2257 records—and he detailed just what a sexter needs to do to comply.
If a husband sends a sexual image of himself on his cellphone, Murray explained, "he's actually supposed to first collect his ID to make sure that he's over 18; check it; he's got to keep records of it, and then he's supposed to post on the image he sends to his wife a label showing where these records are, at his home, so that the government then, when it sees that, can come into his home without a warrant and inspect his records. That's how broad and ridiculous this law is."
Murray noted that people who post explicit photos on sites like AdultFriendFinder face a similar problem—and that none of the officials at phone companies or "friend" sites give their patrons any warning of their essentially illegal acts. And of course, adult retailers who post photos of their wares on websites are considered "secondary producers" and required to keep 2257 records also.
On the other hand, Murray had inspirational words for the adult community:
"You're far, far more than businesspeople; you're the guardians of liberty. You're the ones who the American people in many respects depend upon for advancing the cause of liberty because you're in a controversial area and you're at the forefront of winning the battle. So don't lose sight of how important your goal is in preserving freedom."
The other main topic of discussion at the seminar was Measure B, and Cambria was glad to provide the audience with an update on Vivid's lawsuit against the measure, one aspect of which was scheduled to be heard by the Ninth Circuit Court of Appeals on March 3.
Cambria began by recapping the progress of the AIDS Healthcare Foundation-inspired public meetings held by Cal/OSHA personnel that started in March of 2010, and how Vivid CEO Steve Hirsch had asked Cambria to represent Vivid's interests in the issue—but Cambria quickly found that he was not dealing with a level playing field.
"It was clear to us—and Diane Duke was on that committee as well—that the people there had decided what their conclusion was going to be before they heard any of the facts, testimony or anything else," Cambria told the crowd. "At the end of the day, they were going to say that condoms were required for everything and that was the panacea. I tried over the course of those several years to point out to them that I really thought that forcing condoms and thereby forcing production out of Southern California was going to do less to protect the workers than encouraging testing and more advanced testing techniques, more stringent and regulated testing techniques. And basically, if your goal, Cal/OSHA and others, was to protect the workers, you were going to not only not achieve that goal, but you were going to achieve the opposite of that goal, because what you were going to do is drive the industry either underground or out of the state where there would be little or no testing, protections or anything else. And of course the AIDS Healthcare group was there, and they always had the same conclusion: Condoms were the panacea and that was going to solve everything."
Cambria then recapped the events leading to the passage of Measure B, and Vivid's reaction to it: File a lawsuit to overturn it. He spoke of AIDS Healthcare's intervention in the case, and of Judge Dean Pregerson's ruling on Vivid's Motion to Dismiss, which is being appealed to the Ninth Circuit.
"The court said, 'Sexual intercourse engaged in for the purpose of creating commercial adult films is expressive conduct and any restriction requires First Amendment scrutiny,’” Cambria reported. "The court struck down [Measure B's] fee structure, the court struck down the permit structure. The court struck down the administrative proceedings for charging somebody with a violation, for violating them, for telling them they couldn't produce other movies if they had violated any of the provisions, struck down the funding for Measure B. They found that the definition of adult material was overbroad. So with all of those things that the court struck down and enjoined the enforcement of, the logical conclusion was that the entire statute would be declared non-enforceable at least at that point in time, at least until we were able to have an ultimate conclusion in the case. The judge didn't do that. The judge decide that he was going to rewrite those provisions that he was having difficulty with, and come to the conclusion that vaginal and oral intercourse required condoms," a tactic which Cambria said violated Supreme Court dicta.
Nonetheless, Cambria said, companies that shoot in L.A. County without condoms can still be cited by health authorities, so he concluded, "We can't advise you to produce in the county without following the condom requirement, because that's the state of the law."
Fattorosi, who spoke directly after Cambria—and who seemed to take no personal position on whether condoms and other barrier protections should be required—began by saying, "There's always more than one way to skin a cat, and while Paul and his team have done a great job with Measure B, even if he defeats Measure B as he thinks he's going to, we're going to have a fallback position in something called the bloodborne pathogen laws in California, which basically require condoms anyway. So Measure B is an L.A. County law; bloodborne pathogen is a California state law, and the bloodborne pathogen law is not being challenged by anybody at this point. ... I think AIDS Healthcare Foundation has done a great job of using Measure B as a misdirection. They've got our attention on this law in L.A. County while we continue to avoid the statewide issue of bloodborne pathogens."
Fattorosi said that five or six of his clients, including Immoral Productions, use condoms on a regular basis, and he disputed the argument that because Sec. 5193 of the Health Code requires complete protection from fluid transfers from one body to another, Cal/OSHA would require adult performers to wear goggles, much less hazmat suits.
"We have for the last several years had meetings with Cal/OSHA, trying to take this square law [Sec. 5193] and fit it into an industry where it doesn't really fit," he said, "and we've had some success trying to talk to them about how the realities of the industry don't necessarily match what values in a hospital."
"This is not going to be a local issue, just California; this is going to be a national issue when it comes to what is eventually going to be regarded as an employee-versus-employer situation," he continued later. "So when Paul says that the AIDS Healthcare Foundation has the money and the ability to move this out of California, I fully believe that and I fully believe that's what's going to happen. So if you're a producer and you believe that you're going to go to Nevada, Florida or Arizona, you're buying yourself some time, but as long as AIDS Healthcare has you on their radar screen, they're going to be pushing this law across the country and they're pushing this law across the country for one simple reason: They want to see condoms in adult content. Why do they want to see condoms in adult content? Because it spreads fear. ... When your entire existence is to spread fear and raise money, you have to keep that fear alive."
When asked directly by Hymes whether he supports mandatory condoms in porn, Fattorosi responded, "It's the law. I can't advocate against what the law is. Listen, as a lawyer, I'm not a producer. I tell my clients the same thing: It's what the law requires. You're going to abide by the law or you're not going to abide by the law; those are the risks that you take. My legal opinion is, bloodborne pathogens require condoms."
But Cambria was ready with a response: "If we accepted every law that was passed without challenging it, what am I doing here? As far as I'm concerned, we challenge laws that are unconstitutional.
"Our position at the moment is to attack the statute from a constitutional standpoint," he continued. "We've had substantial success. If Fed or Cal/OSHA does it also, we'll attack that. If we lose all those and we're stuck with condoms in some way or another, then we'll play the game and try to work things out and play nice and all the rest of the stuff that goes with it. A number of the companies aren't going to do that. What they're going to do is go to Europe with a troupe of actors and actresses, they're going to shoot six or seven movies and then they're going to come back. Some of them are already doing that. ... My guess is, there's going to be a lot of companies moving to Europe or Mexico."
For his part, DeWitt, who splits his practice between Las Vegas and Los Angeles, said that Nevada was ready to find a place for the adult industry.
"The economy ain't so good here anymore, in case you don't know it," DeWitt declared. "It's a mess. One of the members of the city council has publicly said, ‘We'd love to have the adult motion picture industry move here. We'd welcome them with open arms. We want to have a diverse economy here.’ I guess she thinks porn means a diverse economy."
Panelist Larry Walters somehow managed to avoid getting caught up in condom discussions, though part of his talk was directed to helping performers and others who want to become adult content producers by offering proprietary applications such as Birthdate Verifier and Quick2257, which help producers keep track of required paperwork—trial versions of both of which are available on his website.
Walters also commented on a new trend he's seen in adult litigation.
"Instead of obscenity prosecutions and 2257 inspections and prostitution arrests, what we're seeing more commonly as a problem is the consumer protection complaint," he noted. "That's where a user goes to the attorney general and says, 'I don't like the way this company is operating. I didn't get what I paid for; this is false advertising,' et cetera, or the FTC comes down on some operator of either a website or brick-and-mortar store, claiming that your advertisement or your promotional activity is unfair or somehow violates the Deceptive and Unfair Trade Practices Act. Those are significant concerns. You can lose all of your gross revenue ... while you're using this 'unfair business practice.’”
All in all, it was a worthwhile 90 minutes for performers, producers, webmasters and retailers alike—but that's what folks expect from AEE legal seminars.
This article originally ran in the March 2014 issue of AVN magazine.
