Free Speech Summit Discusses What's Ahead for Measure B

BEVERLY HILLS—It was standing room only at the Free Speech Coalition Summit for this afternoon's information and strategy session regarding L.A. County Measure B, the so-called "Safer Sex in the Adult Film Industry" law, which was passed by a 55-44 percent vote on Tuesday.

The first speakers were Susan Burnside, the head of the No on Government Waste Committee, and James Lee, the campaign's communications director, and together with Free Speech Coalition Executive Director Diane Duke they outlined what went wrong—and right—with the campaign.

Burnside noted that this was the adult industry's first open attempt to influence how citizens would vote on a ballot measure, and suggested that the industry could learn a lot from the campaign in terms of what to do, and not do, in future similar attempts.

Lee put the loss in perspective. While noting that "We were underfunded," in part because active fundraising for the No on Measure B campaign began just under three weeks ago, he nonetheless reported that among the non-absentee voters, the campaign's radio and TV ads, and the broadcast debates between Lee and representatives of AIDS Healthcare Foundation (AHF), reduced an early polling of 28 percent in favor of Measure B to just a 7.8 percent positive result when voters actually went to the polls and voted.

"In eight days, we shaved 20 points," Lee stated, and lauded those activists present by noting, "You were able to speak as a unified industry as you've never done before."

Lee warned that if the adult industry really wants to take its place beside traditional mainstream industries, it will have to "know how the [political] game is played," and that with the No on Measure B campaign the adult industry forced other businesses and government leaders in the community to take adult concerns seriously.

From there, discussion turned to when and how Measure B will be implemented, with attorney and FSC Board chair Jeffrey Douglas explaining that not only will Measure B first have to be translated into usable regulations, which he expected to take at least six months, but that among the County Board of Supervisors, "There is zero incentive for this to go forward." He said he expected AHF  to eventually sue the supervisors to force implementation and enforcement of the law, and he further expected the continuing controversy to be exploited by AHF as a fundraising tool—something it has done since before their official Measure B campaign even began.

Duke reported that FSC had already sent a letter to the Board of Supervisors expressing the industry's concerns about the new law, and warning that if necessary the industry will litigate to stop the law, while at the same time attempting to help relocate adult production companies that want to leave Los Angeles before the law goes into effect.

Duke explained, however, that while the law will technically go into effect in December, regulations will have to be written so that everyone knows what will and won't be required, and implementation ordinances will have to be passed by the 85 L.A. County cities that accept Health Department services—tasks that will require several public hearings she anticipates will take "a very, very long time."

Douglas added that the City of Los Angeles itself was having difficulty finding inspectors to enforce its own mandatory condom ordinance, and that after several meetings of city officials failed to put together an inspection team, the city decided to wait to see if Measure B would pass, saying it would try to avail itself of whatever inspection staff the County Department of Public Health managed to hire—noting at the same time that no such group seemed to be on the horizon.

Talent agent Shy Love cut to the chase when she asked when FSC expected to begin litigating the issue, and Douglas explained some of the legal issues that would likely be brought up in future lawsuits. These included whether the County Health Department actually has jurisdiction to enforce a mandatory barrier protection ordinance, or whether enforcement would more properly be the province of the state through CalOSHA; he also said important constitutional issues would be brought forth, including whether adult producers could be forced to deliver the type of sexual speech—condomized—that the ordinance would force them to attempt to sell.

More immediately, when asked whether producers should begin using condoms and other barrier protections in current productions, Douglas assured the audience that it was not immediately necessary because we don't even know what the final regulations will require. He added that the county would not be allowed to sue companies retroactively for not having used the devices in the absence of existing regulations that the industry could follow.

Douglas also pointed out that the costs associated with obtaining the required public health permits, which he speculated could be as much as $30,000 per company, and shooting permits from FilmLA, not to mention the costs associated with the health inspection team, would be something that few companies—especially camgirls who provide content from their own homes—could afford or would want to spend, thus providing an additional impetus to move out of the county or out of state.

When one observer stated that the only two states where shooting adult content is legal are California and New Hampshire, Douglas corrected her by noting that the vast majority of states have neither passed laws preventing adult productions in their state, nor do they have court decisions that have criminalized such conduct. He noted that prosecutors in Clark County, Nevada (home of Las Vegas), have dismissed attempts to jail adult producers operating in the county, taking their cue from California's Freeman decision, which cemented the legal status of adult movie production in the Golden State.

At that point, Vivid Entertainment's Steve Hirsch pointed out that the fight against Measure B, no matter what form(s) it takes, will require lots and lots of donations from adult industry members and supporters to prevent what he termed "our worst nightmare." Several audience members noted that the industry has long been stingy when it comes to funding legal battles—the fight against 2257 was given as an example—but Duke urged the audience not to "throw away the baby steps we've taken" toward the industry becoming a recognized political force in California. She compared the industry's struggles to the fight to gain legal acceptance of gay marriage, saying that with the defeat of several "hetero marriage only" propositions in Tuesday's election results, the message is clear: Fighting the good fight leads to victory, even if it takes a while for it to happen.

The final speaker was attorney Clyde DeWitt, whose primary offices are now in Las Vegas. He painted a rosy picture for the possibility of the adult industry moving to Nevada, noting that three justices on the state Supreme Court are already liberal enough to look favorably upon the industry, and that at least one Las Vegas city councilperson had made it clear that she would welcome adult production companies with open arms. He noted that several companies already shoot movies in Las Vegas, and that he had just recently obtained a business license for a gay adult production company in the city. Beyond that, he said, the state has no income tax, and there are enough empty office buildings in the city that rents would likely be cheap.

The session lasted just over a hour, and presented a solid vision of where the adult industry needs to go from here—and how much money it will take to get there. Now, it will be up to FSC, together with studio heads, to make the impending fight a reality.