CYBERSPACE—In an article posted to the U.S. News & World Report (USNWR) website on Thursday, journalist Steve Nelson (no relation to the owner of AIP News) took a look at the ballot initiative which was recently ruled to be "eligible" for a spot on the November, 2016 California ballot—and while giving voice to many industry concerns, Nelson suggests that according to some conservative mainstream attorneys, the initiative, if passed, would survive a legal challenge.
But first, the good news: "You've got a better chance of getting HIV by picking up a girl in a neighborhood bar than going to bed with a porn star," Nelson quotes Hustler publisher Larry Flynt as saying while referring to the routine testing required by mainstream porn studios. "The whole idea is just crazy."
"The HIV question is not really a real issue because the adult industry has been extremely diligent when it comes to that, because that's how we make our living," Vivid co-owner Steve Hirsch added, noting that he's unsure that the initiative would pass. "No performers, no movies—so it's obviously in our interest that everyone's protected and that's why we have the testing protocols in place that have worked extremely well.
"At some point this [initiative] needs to be stopped, and we're certainly interested in being part of an industrywide group that takes this on," Nelson quoted Hirsch, noting that Vivid is already the primary plaintiff in the lawsuit against Measure B.
Also on the plus side, Nelson spoke with adult industry publicist Michael Stabile, who stated that, "I'm a gay man who lived through the [1980s AIDS] epidemic, so I'm very aware of what counts as scare tactics with HIV. I think it's despicable what Weinstein does with it and the way he wields it." Stabile also pointed out that AHF president Michael Weinstein has been a vocal opponent of Truvada, the drug that is nearly 100 percent effective in preventing HIV infection in those who take it regularly—which more and more adult industry performers are doing.
Nelson also notes one of the industry's main objections to the initiative: that it would allow any California porn viewer to sue companies and performers if, in that viewer's opinion, the studio or actor were violating the mandatory condom/barrier protection measures required by the initiative.
"This proposed legislation is nothing more than another attempt to impose religious morality upon the public, clothed as a public health safety issue," Nelson quotes Michael Lucas, CEO of the gay porn studio Lucas Entertainment, as opining. "This proposed legislation subjects a few businesses to the threat of endless litigation by any citizen of the state, regardless of their relationship to the business or to any performer."
In an attempt to cover all sides of the issue, Nelson also talked to AIDS Healthcare Foundation's Adam Cohen, who framed the whole controversy as a "public health issue" where "pornographers may be less than keen to shine a spotlight on seedier elements within the industry"—and who is apparently gullible enough to think that bareback producer Treasure Island Media would actually be stupid enough to insert the contents of "a jar of 200 different loads labeled 'POZ CUM'" and which actually contained HIV-positive semen (or any semen at all) into the ass of one of its performers, as depicted in its video Viral Loads.
But the more depressing aspect of the article is where Nelson quotes the views of UCLA law professor Eugene Volokh, who wrote several sections of The Heritage Guide to the Constitution, published by the ultra-conservative Heritage Foundation, and has a blog on the Washington Post website, and George Washington University professor Jonathan Turley, who once testified in favor of impeaching President Bill Clinton over the Monica Lewinsky sex scandal, and who has represented Republican members of Congress in lawsuits against the Obama administration, most notably over the Affordable Care Act ("Obamacare").
Volokh gave Nelson the party line on intermediate scrutiny, noting that, "Generally speaking, the government has considerable authority to restrict conduct even when that incidentally affects speech, so long as the restriction is unrelated to the content of the speech and so long as it's sufficiently connected to some important government interest." However, considering the industry's rigorous testing program, the existence of Truvada, and the fact that, despite a recent Ninth Circuit opinion, condoms and other barriers do impact many viewers' enjoyment of adult content, the U.S. Supreme Court would likely find that the implementation of new CalOSHA protocols such as Health Code Sec. 5193.1 would deserve strict First Amendment scrutiny—if it even got that far in its consideration, since it could easily rule that AIDS Healthcare Foundation has no stake in porn performers' health in the first place.
Turley, on the other hand, noted that "the pornography industry historically has been subject to attacks using government rules from people who oppose the content of their work, which could bolster First Amendment claims triggering strict scrutiny by courts," but warned that, "if one were to wager, the state would likely prevail" on the enactment of its new condom/barrier requirements because "there's great deference given to public health regulations."
The full USNWR article can be read here—including the part where Larry Flynt describes Michael Weinstein as "some Jesus freak about condoms" and a "wacko out there who's had this crusade going for years."
