FilmLA at Today's Condom Hearing: 'Webcammers Need Permits'

LOS ANGELES—Today saw the third meeting of the Working Group on the Safer Sex in the Adult Film Industry Ordinance, which once again was held in a conference room in the City Administrative Officer's office—and which once again was not posted on the list of the Los Angeles City Meetings & Agendas website.

Of course, considering the content of the meeting—or lack thereof—the failure to post the meeting, though a violation of the city's rules, was of little consequence.

In attendance at the meeting were Miguel Santana, the Chief Administrative Officer (CAO), as well as two staffers from his office; A.P. Diaz, representing the LA City Attorney; Robert Ragland, the Principal Deputy County Counsel for LA County; Mario Perez of the LA County Department of Public Health; Dru Ross of the LA Personnel Office; and three members of FilmLA, the agency which issues filming permits for those wishing to shoot movies in the city, including both FilmLA president Paul Audley and VP of Communications & Public Affairs Todd Lindgren.

In fact, once those referenced above had introduced themselves, the official business was quickly over. The Working Group voted to approve the minutes of the previous meeting; CAO staffer Eva Bitar announced that work still needed to be completed on the Group's final report to the LA City Council, which was supposed to be presented to the Council on May 16; and Santana stated that the Working Group would have yet another meeting sometime next week, on a date to be determined, to consider the final report, and there was discussion that that report might be presented to the Council on May 23—unless the fact that the Council was slated to discuss the city's budget during that week forced yet another rescheduling.

All of that took a total of three minutes, after which Santana opened the floor to comments from the audience.

The first speaker was Immoral Productions owner Dan "Porno Dan" Leal, who informed the Group that one of his independent contractors had been given a citation by one of the eight members of LAPD's Vice Division who arrived at the location, for shooting a live webcam show without a permit. Leal explained that since the citation has been issued because the show, which was not yet under way when the police arrived, was being done for commercial profit or gain, he surmised that every webcam performer in the city would not be required to get a permit from FilmLA, and asked the FilmLA representatives if that was correct?

"It has been consistent that any commercial production, including webcasts, needs a permit," responded FilmLA's Lindgren.

"So any webcam show shot by anyone in the city of Los Angeles will now need a permit, is that correct?" Leal asked.

"Has always needed a permit, right," Lindgren corrected him.

"Ergo, any married couple shooting in their house, who's shooting a webcam show for profit or gain, which by definition would be every single person that shoots webcam, would now need a permit, is that correct?" Leal pressed.

"Under the city ordinance, if it's for commercial purpose, it needs a permit," Lindgren stated.

"And therefore, they would need condoms under the new regulation, is that correct, that logic?" Leal continued.

"We're in the process of developing that specific—and I can't answer that question," Lindgren responded.

At that point, Santana cut Leal off, stating that the comment period wasn't supposed to include a question-and-answer dialog with Group members, leaving Leal to finish by stating, "We will be happy to comply with whatever the city decides to do."

Michael Fattorosi, who thought he'd donated his three minutes to Leal, was allowed to speak as well, and directed the Group's attention to the comments he's made at the previous meeting.

"You have an overwhelming difficult task in front of you," Fattorosi told the Group. "There is a large amount of commercial shooting that is going on, that is of a hardcore nature, that would be almost impossible to regulate. The law is broadly written [and] anyone involved in the production of an adult film could be cited under this law, whether that includes makeup artists or a hired performer; you have issues as far as being able to identify who the producers are; you have overseas producers that are now looking to Los Angeles as a place to hire directors and performers. There is an insurmountable task in front of LAPD to identify the parties that may not even be the actual producers.

"This is not 1995 anymore in the adult industry," he continued. "It is a worldwide business. This is a business that has foreign interests in Los Angeles, it has local interests in Los Angeles, and again I ask that when this council and this commission puts forth recommendations to the City Council as to implementing this particular law, that they see the broader issues of being able to regulate and being able to implement this, and that you consider the First Amendment issues that were raised last time... We're in tough economic times, and there may be married couples, there may be single women who do this in order to make extra money, or to be able to pay their rent, and if you're expecting them to pay $750 or more per month to maintain a filming permit, to be able to earn that, they won't, and they probably can't afford to."

The next speaker was Free Speech Coalition executive director Diane Duke, who asked the Group to consider the fact that the new ordinance appears to treat the adult industry differently from mainstream, based on the content of the industry's speech.

"You are faced with film productions every day," Duke stated, "so when you treat our industry different because of the basis of our content, then we have a problem with that. So when you're looking at—whether it's in the permitting process or the regulatory process, when you're singling out the type of content, then I think you're going to be running into constitutional issues. I know for our industry, it will put us in a place where we will be further subject to different types of censorship, and it seems like a far-fetched idea sometimes, but it happens time and time again, where things like if we had to have somethiing different on a permit for our industry, it could be used against us in future in different types of court cases. So one of the things I hope you will consider is, if you're going to be imposing something of the film industry, you impose it on the film industry. Don't treat us any different than you would the folks over the hill."

AIDS Healthcare Foundation's (AHF) Mark Roy McGrath spoke next, and began by claiming that during the investigation of the  2010 Derrick Burts HIV infection, the LA County Department of Public Health had no problem identifying "all the production companies, all the secondary producers... in quick, short order," charging that those companies "continue to violate California law, they continue to act as outlaw entities, and we feel that... it's time that this industry act with legal responsibility and show a modicum of corporate citizenship."

McGrath claimed that the law "does not distinguish between content, but on acts," adding that, "they can create any content they want that's simulated. This law is specifically looking at infectious disease transmission and exposure." (Of course, most adult content fans won't buy simulated sex, but that's not something that worries McGrath.)

While noting that neither he nor AHF is "happy with the draft language," he asked, "How is it going to be logged? How are we going to conduct these investigations? If the fire department and police camn't do it, where are we going to do a Request for Proposal?"

Of course, several prominent adult industry members have suspected all along that part of the reason AHF got the new ordinance put on the books was to eventually offer its services to the city as the only official "condom inspectors," so it will be interesting to see which entities respond to McGrath's suggested RFP.

The morning's final speaker was First Amendment attorney Allan Gelbard, and while Santana did not allow him to complete reading his prepared remarks to the entire Working Group, they were provided to AVN and are reproduced in full here:

My name is Allan Gelbard. I am a First Amendment and Intellectual Property lawyer. I represent a significant number of adult entertainment industry members including some of the industry's most famous companies, directors, producers and performers. All of them are opposed to the mandatory condom policy. Without exception, they all believe—and have first-hand knowledge—that this policy makes them less, not more safe.

I am also a constituent of Councilman Zine, a taxpayer and a native of this beautiful city, and I object to the waste of my personal tax dollars being spent on passing and even attempting to enforce a clearly unconstitutional law.

I am here to make one point very clear: this ordinance is unconstitutional. Your City Attorney has already acknowledged that the statute is "patently illegal" and has asserted in court filings that the statute is unconstitutional on preemption grounds.

I am here today to address the First Amendment implications that you may have failed to consider.

First, let me say I was appalled when I read an account from your last hearing on this matter, that a City Attorney, [Kimberly] Miera, represented to this body that pornography is not protected by the First Amendment.

That is patently a false statement. Whether she inadvertently misspoke, or knowingly employed a tactic of social conservative ideologues that intentionally conflate the words pornography and obscenity, this body's understanding of the matter, and the financial risk to this city of making such a mistake, is crucial.

Since 1965, when the US Supreme Court decided Freedman v. Maryland (380 U.S. 51), it has been beyond dispute that "government restrictions on the content of expressive activity" (such as filming a movie) are subject to review under the First Amendment.

In 1973, the US Supreme Court decided Miller v California (413 US 15) which defined what is and what is not obscene, and distinguished obscenity from non-obscene pornography which is clearly expression protected by the First Amendment "regardless of whether the government or a majority of the people approve of the ideas these works represent."

In 1988, the California Supreme Court held, in People v Freeman (46 Cal 3rd 419, 425), "a non-obscene motion picture is protected by the guarantee of free expression found in the First Amendment." In so doing, it held that attempting to use the pandering and prostitution laws against the makers of non-obscene adult entertainment was an attempt at "an end run around the First Amendment."

What does your ordinance actually do? It requires performers in adult productions to employ barrier protection which will, obviously, affect their performances, the messages they intent to convey, and be visible in the movies.

This is clearly a content-based restriction on speech, and such restrictions require the government to prove their law satisfies strict scrutiny, which this one cannot.

This ordinance compels the speaker to include safe sex practices in their film, which, while perhaps a laudable goal, and which may be the actual political goal of the main proponent of the statute, nevertheless constitutes compelled speech. Such governmental acts violate the rights of freedom of expression, both of the producers of the films, and the actors who appear in them.

In the 1988 case of Riley v National Federation of the Blind of North Carolina (487 US 781, 790-91), the US Supreme Court stated, "The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it."

In 2000 in Garawan Farming v. Lyons (24 Cal.4th 468), the California Supreme Court stated that the First Amendment fully protects "idealogical speech" which it defined as including "philosophical," "social," "artistic," "literary," "ethical," and similar matters..." Justice Mosk continued, "The right in question is put at risk both by prohibiting a speaker from saying what he otherwise would say and also by compelling him to say what he otherwise would not say."

Forcing adult production companies to require their performers to use condoms violates the rights of all the participants who wish to convey a different message. All the rhetoric aside, this is undeniable.

I understand the City was, in all likelihood, attempting to save the costs of placing the matter on the ballot, and then being sued. But by passing this ordinance, and now proposing to actually enforce it, you are simply jumping ahead to the "getting sued" part. As I'm sure you all know, 42 USC 1983 provides for private causes of action in Federal Court to remedy constitutional violations and 42 USC 1988 shifts the attorney's fees incurred by such actions to prevailing plaintiffs.

In 1994, in Turner Broad. Sys. v. FCC (512 U.S. 622, 641-42), Justice Kennedy writing for the Court said, "At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right."

Each of you took an oath to obey the Constitution. I urge you not to make me, or someone else like me, compel you do it, and to waste our tax dollars—so desperately needed elsewhere—on such an easily avoidable lesson.

I thank the board for this opportunity to speak and for its consideration of these concerns.