LOS ANGELES—AIDS Healthcare Foundation (AHF) has apparently paid its signature gatherers enough so that its "California Safer Sex in the Adult Film Industry Act" ballot initiative, which would install its president Michael Weinstein as California's "porn czar," will appear on California's November 2016 ballot, barring the success of legal challenges that may yet be filed against it.
However, one little-reported aspect of the initiative is its intended revision of Section 6720.6 of the California Labor Code, subsection (a) of which reads, in pertinent part, "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."
That particular section inspired adult industry commentator Tracy Clark-Flory to post an article on Vocativ.com titled "Porn Stars Vulnerable To Trolling, Lawsuits Thanks To New Measure," which notes that the initiative "empowers everyday citizens to sue adult film producers for creating condomless porn—and offers a financial incentive for doing so."And as Clark-Flory notes later in the article, that could include any number of the 38.8 million California residents, with the initiative guaranteeing that, "if judgment is entered against one or more defendants in an action … penalties recovered by the plaintiff shall be distributed as follows: 75 percent to the State of California and 25 percent to the plaintiff."
"This bill puts performers at the mercy of any citizen, including those who misjudge and scorn the adult film industry," Chanel Preston, president of the Adult Performer Advocacy Committee, told Clark-Flory. "Any person or group with an anti-porn agenda, anyone with a personal issue with a specific performer, or an overly zealous fan could use this power as a means to attack performers in the industry."
While it's true that the adult industry isn't making as many hardcore movies per year as it did as recently as 2008, at the start of the Great Recession, there's nothing in the ballot initiative that limits which adult movies can be the subject of citizen complaints—or even that it has to be a movie. It could be simply a scene that was shot in California and posted on a website, or even a webcam show originating within the state, since the initiative defines "filmed" and "filming" as "the recording, streaming, or real-time broadcast of any adult film."
But what that means is that any sexually explicit movie ever made that was shot in California, in which condoms are not used for vaginal or anal intercourse, could be the subject of a Cal/OSHA complaint and/or citizen lawsuit—and there are tens of thousands of them still on the market, with new ones being produced every day. And even if the courts limit such suits to movies (or web content) made after Section 5193 of the Health Code was enacted, or ones made after the initiative passes, the number could still be in the thousands, triggering millions in court costs, all of which would be borne by California taxpayers.
Now, the initiative doesn't set out exactly how a citizen can bring a civil suit against an adult producer—presumably he/she would have to hire her/his own attorney, though we can't help but suspect that AIDS Healthcare will have a cadre of legal representatives at the ready, possibly with boilerplate pleadings ready to be tweaked to deal with the specific "violations" found in any movie—but the initiative does state that, "The court shall award to a plaintiff or defendant other than a governmental agency who prevails in any action authorized by this Act and brought pursuant to this section the costs of litigation, including reasonable attorney's fees."
The possibility of a defendant recovering such fees from a plaintiff, though, is vanishingly small, since for that to happen, "the court must first find that the plaintiff's pursuit of the litigation was frivolous or in bad faith"—a difficult standard for a defendant to meet. On the other hand, depending on what deal AHF may make with the attorneys to whom it sends citizen porn complainants, "reasonable attorney's fees" could be a hell of a tidy sum; possibly even more than the court would award for the condomless movie.
Of course, if a citizen has a complaint about a condomless adult movie, she/he must first file such complaint with Cal/OSHA, but as the article notes, "if the department declines or doesn't respond within 21 days, or if the case isn't pursued within 45 days, it's fair game. If Cal/OSHA pursues the tip but then abandons it, or if the case is dismissed, it's also up for grabs."
Clark-Flory also points to another problem created by the initiative: Who's a "producer"?
"Pretty much every performer at this point is also a producer," Clark-Flory quotes Free Speech Coalition spokesperson Michael Stabile as stating. "Performers have their own websites, they sell clips, they do webcam shows. ... All I have to do as a private citizen is see a performer not using a condom in a video, and I get to haul them into court."
Clark-Flory gives Stabile the final word on the subject, and we can only echo it: "Like many moralists, Weinstein believes he has to destroy the village in order to save it."
