Los Angeles Porn Actors Required to Wear Condoms Act, Measure B (November 2012)

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A Los Angeles Porn Actors Required to Wear Condoms Act, Measure B was on the November 6, 2012, ballot in the County of Los Angeles, where it was approved.[1][2]

Measure B requires porn actors to wear condoms. It also requires producers of adult films to pay an annual fee to the county's Department of Public Health. Under Measure B, all principals and management-level employees of adult entertainment-producing companies must undergo blood-borne pathogen training.[3][4]

Supporters of the measure originally tried to qualify it for the ballot in just the City of Los Angeles. The Los Angeles City Council then passed an ordinance that mandates the use of condoms by porn actors while on location. After that event, supporters of the initiative then made the decision to collect signatures to qualify a condom requirement for the county-wide ballot.

Members of the porn industry threatened to leave California if the measure passed. After Measure B did pass, a spokesperson for the adult entertainment business said, "I can tell you they are leaving L.A. County in droves. It’s a multi-billion dollar industry that employs thousands of people, and ever since this all started they have been leaving and filming in places other than L.A. County."[2][4]

On January 11, 2013, porn production company Vivid Entertainment filed a lawsuit in federal court seeking to have Measure B overturned on the grounds that it imposes an unconstitutional prior restraint on freedom of expression.[4]

Election results

Measure B
ResultVotesPercentage
Approveda Yes 1,617,866 56.96%
No1,222,68143.04%
Final official results from the Los Angeles County elections office.

Support

Supporters

Leading supporters included:

"Yes on B" website graphics
  • Michael Weinstein, president of the Los Angeles-based nonprofit AIDS Healthcare Foundation
  • Derrick Burts and Darren James. Burts and James are former porn performers. They both contracted HIV while working in the adult entertainment business. They were featured in two 30-second commercials that supported Measure B.[1][5]
  • Shilpa Sayana, MD MPH, Director of Global Quality Management/HIV Care Provider for AHF
  • Whitney Engeran-Cordova, Director, Public Health Division, AHF
  • Miki Jackson
  • The Los Angeles County Medical Association.[6]
  • Pink Cross Foundation[7]

Arguments in favor

  • "For too long, elected officials have dodged this workplace safety issue, punting the issue from city to county to state, and as a consequence, the health and safety of these workers has been neglected, often with dire consequences."[2]
  • Measure B "stops the spread of disease. Reputable health experts have determined that condoms are the best method to protect against the transmission of HIV and other Sexually Transmitted Diseases (STDs)."
  • Measure B "protects performers working in porn. Performers in the Adult Film Industry deserve the same protections and enforcements from workplace hazards as employees in other industries."
  • Measure B "protects your tax dollars, from being spent on costs for the Adult Industry. All costs of measure B will paid by fees on the industry."

Opposition

Opponents

  • A "No to Government Waste Committee" was the official campaign committee opposing Measure B.[5]
  • The Free Speech Coalition is the trade association for pornographers. They opposed Measure B.[4]
  • The San Fernando Valley Industry and Commerce Association opposed Measure B.[6]
  • James Deen, an adult film actor, opposed Measure B.[6]
  • The editorial board of the Los Angeles Times opposed Measure B, writing, "Measure B is well intentioned, but it is likely to stymie county government and bring little benefit to performers."[8]
  • The editorial board of the San Gabriel Valley Tribune opposed Measure B, writing, "Everybody wants to protect health. The question is whether the adult-film industry is a big enough threat to warrant Measure B's solutions. The editorial board is not convinced, and we recommend the measure's defeat."[9]
  • The editorial board of the Long Beach Press-Telegram opposed Measure B, writing, "The porn industry claims to have a relatively safe record: It says nobody has contracted HIV on a porn movie set in the United States since 2004. Closer to home, another number may change the minds of those who picture porn performers representing a sizable population whose sex activity poses a public health risk worthy of county officials' attention: The adult film industry's trade association says that despite the image of Southern California and the San Fernando Valley in particular as the porn capital of the world, only 280 porn performers actually live in L.A. County year-round."[10]

Arguments against

Diane Duke, the executive director of the Free Speech Coalition, said, "History has shown us that regulating sexual behavior between consenting adults does not work. The best way to prevent the transmission of HIV and other STIs is by providing quality information and sexual health service, all of which are successfully provided through adult industry protocols and best practices. Clearly AIDS Healthcare Foundation has chosen to squander its donors' resources by filing frivolous lawsuits and ballot initiatives instead of providing valuable resources toward the prevention and treatment of HIV."[4]

Stuart Waldman, president of the San Fernando Valley Industry and Commerce Association (VICA), said, "The real results of this ballot measure, should it pass, will be a loss of thousands of jobs. The industry employs more than 10,000 workers in production-related jobs such as makeup, lighting, carpenters, transportation, food service, payroll processing, Web design and actors."[6]

Adult film actor James Deen said, "I've made more films than most, and I have never contracted an STD. Everybody takes this work seriously. It's insulting and unconstitutional. To say we have to have a movie made a certain way is impossible."[6]

Polling information

See also: Polls, 2012 ballot measures

The AIDS Healthcare Foundation, supporters of the initiative, commissioned a poll in March 2012 to measure public support for the mandatory condom requirement. Their poll indicated that 63% of likely voters supported the requirement.[11]

Date of Poll Pollster In favor Opposed Undecided Number polled
March 16-23, 2012 Research Now 63% 37% - 1,046

Lawsuit to overturn

Kayden Kross, a co-plaintiff in the federal lawsuit to overturn Measure B

A federal lawsuit was filed with the United States District Court for the Central District of California on January 11, 2013 that seeks to have the federal court overturn Measure B. The lawsuit was filed by porn production company Vivid Entertainment. Porn stars Kayden Kross and Logan Pierce joined the lawsuit as plaintiffs.[4]

Paul Cambria is the lead attorney for the plaintiffs. He said, "You don’t have to win an Oscar to be protected by the First Amendment."

The lawsuit says that Measure B should be overturned for several reasons. Those reasons include:

  • It violates the First Amendment by imposing an unconstitutional prior restraint on freedom of expression.
  • It attempts to regulate an area (public health) which should exclusively be regulated by state law.

The AIDS Healthcare Foundation, which sponsored Measure B, expressed confidence that the lawsuit would fail. Tom Myers, an attorney for the group, said, "Despite what the adult industry’s lawyers are claiming in this lawsuit, Measure B is not directed at speech and as such their First Amendment claims will likely ring hollow with the court."[4]

In August 2013, Judge Dean Pregerson upheld the law as constitutional.[12]

Path to the ballot

County

By mid-April 2012, supporters of the initiative said that they had collected about 235,000 signatures in Los Angeles County toward their goal of collecting 374,000 signatures by early June. 232,000 valid signatures is the minimum requirement to force the initiative to a vote on the November 6, 2012, ballot.

City

To earn a spot on the LA city-wide ballot, supporters of mandatory condom usage by actors in porn movies needed to collect a minimum of 41,138 qualifying signatures, or 15% of all votes cast in the last mayoral election. The deadline for submitting signatures was December 23, 2011.[1]

70,901 signatures were submitted by the deadline, and on December 23, election officials stated that a review of the signatures found that the minimum threshold for qualifying for the ballot had been achieved.[13]

It is unusual for a ballot initiative to qualify for the City of Los Angeles ballot. The last time one did qualify was in 1993.[1]

The City of Los Angeles subsequently filed a lawsuit with the aim of keeping the initiative off their ballot. They contended that according to California law, only the state has the authority to regulate condom usage and that therefore, a city such as Los Angeles is not allowed to enact its own law on the subject of condoms.[4]

The complaint said in part:

"Pre-election, judicial review of whether the city is preempted from presenting to the voters the measure submitted by defendants serves the public interest because a post-election judicial determination that the measure is preempted by state law voters undermines public trust in the petition process. Furthermore, a post-election determination that a measure is patently illegal would undermine the public trust in the government institutions and elected officials who play a role in the qualification measures for the ballot. A post-election determination that a measure is patently illegal undermines the credibility of the elections process in general, which is amongst our most treasured and essential democratic institution.
A post-election judicial determination that an initiative is illegal would also waste millions of dollars of taxpayer money incurred in the process of preparing such initiative for the ballot."[4]

According to the legal theory advanced in the lawsuit, only the state agency Cal/OSHA is allowed to pass laws and regulations governing workplace safety.[1]

In July 2011, Cal/OSHA sent a letter to the City of Los Angeles saying that in it's opinion, the City of Los Angeles can pass its own laws regulating condom use on movie sets.[14]

A hearing on the lawsuit took place on January 25, 2012.

External links

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References


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