Law Journal: Measure B 'Does Not Reflect Reality'

Rhett Pardon

CLEVELAND — Los Angeles' Measure B "is a solution in search of a problem" and there is little evidence that the spread of STIs in the adult film industry is an actual problem, according to an article in the latest edition of Health Matrix: Journal of Law-Medicine, a biannual paper published by student editors at the Case Western Reserve University School of Law.

In the journal' article, "Unwrapped: How the Los Angeles County Safer Sex in the Adult Film Industry Act’s Condom Mandate Hurts Performers & Violates the First Amendment," author Jason Shachner wrote that most in society are familiar with the adult film industry but few understand it. And that extends to politicians and other lawmakers.

"The desire of California’s public officials to protect  the health of a misunderstood and often criticized constituency is  encouraging; but like an adult film scene, Measure B’s condom mandate  does not reflect reality," the journal said. "Performers and the citizens of Los Angeles County deserve serious legislation that is based on facts, not 'feel good' legislation based on assumptions."

The 30-page article includes a thorough background on the history and issues of Measure B, including a glance at performer testing protocols employed by the Free Speech Coalition and the defunct AIM Healthcare Foundation.

It also gives a primer on the First Amendment, and answers why Measure B violates the First Amendment.

U.S. courts apply a two-tiered system of review in evaluating government restrictions on speech. The courts apply strict scrutiny when the restriction is content-based and applies intermediate scrutiny when the restriction is content-neutral.

First off, Shachner's piece discusses why Measure B isn't a content-based restriction on free speech, and the U.S. Supreme Court would not subject it to strict scrutiny.

"Measure B does not have an express content-based purpose, but in  practice it restricts sexual speech on the basis of its content," Shachner wrote.

Secondly, Shachner's article discusses why Measure B shouldn't survive intermediate scrutiny.

While Shachner states that Measure B serves a substantial government interest because the ordinance is aimed at the secondary effects of the failure of performers to utilize condoms during sex scenes — specifically STI and HIV transmission — he goes on to say that the law does not advance the government's interest.

"In order to survive intermediate scrutiny, the government must produce evidence to support its contention that the condom mandate would 'minimize the spread of sexually transmitted infections resulting from the production of adult films ... ,'" he wrote.

Noting that questionable statistics over performer-STI infections were introduced into public discussion, Shachner contended that the government may “rely on any evidence that is ‘reasonably believed to be relevant' to support its rationale that the condom mandate would advance the government’s interest in preventing the spread of STIs."

"However, this does not mean that the government 'can get away with shoddy data or reasoning.' A challenger to Measure B can 'cast direct doubt' on the government’s rationale 'either by demonstrating that the [government’s] evidence does not support its rationale or by furnishing evidence that disputes the [government’s] findings.'

"If, after its evidence is refuted, the government fails to 'supplement the record with evidence renewing support for a theory that justifies its ordinance,' then the ordinance fails under intermediate scrutiny."

While focusing on legal stances of Measure B, Shachner's piece also touts the current system in place — the FSC’s Performer Availability Screening Services, commonly known as PASS — as capable of protecting the health and safety of adult entertainment performers.

"PASS has successfully prevented the transmission of HIV on the adult film sets,'" he wrote. "In 2013 PASS instituted three moratoria in response to performers’ testing positive for HIV.

"The viral genealogies of all HIV positive performers showed that the HIV transmission occurred in the performers’ private lives," he wrote.

Even though some of the largest producers — including Wicked Pictures, Reality Kings, Evil Angel, Jules Jordan, Vivid Entertainment, Hustler, and Girlfriends Films — all support PASS, a concern with PASS is that it relies on voluntary compliance with its protocols," he wrote. "But AIM was successful with only voluntary compliance."

"Performers have a strong economic incentive to work exclusively with producers that follow PASS’s protocols because the consequences of a performer becoming infected are devastating to both her health and livelihood,"  he wrote.

Shachner surmises that Los Angeles County has the opportunity to allay its concerns over transmission of STIs by encouraging and facilitating compliance with PASS’ rules and regulations.

The government could publicly endorse PASS and strongly encourage producers to cooperate with its rules and regulations by providing films that comply with the PASS “seal of approval,” he wrote. The government could also promote cooperation with PASS by streamlining the film permitting process for or providing tax incentives to producers who have displayed compliance with PASS’s rules and regulations.

"The government should be wary of codifying PASS’s protocols because a government agency would have significantly less flexibility to respond to the unique needs of the adult film industry or be capable of taking the swift action necessary in order to stymie a future outbreak."

While Measure B is officially on the books, the Los Angeles County ordinance hasn't yet been enforced.

The 9th U.S. Circuit Court of Appeals currently is weighing Vivid Entertainment's appeal of a federal judge's order denying a preliminary injunction over enforcement of the “Safer Sex in the Adult Film Industry Act," a voter-approved measure that requires the use of condoms in the production of adult movies in Los Angeles County.

Concurrently, a proposal to make condoms mandatory in porn production statewide is wending through California's Legislature. Assembly Bill 1576 has cleared the Assembly and soon will be weighed in the state Senate.

Shachner told XBIZ on Tuesday that he decided to explore the issue "because when I would talk to my friends about the condom mandate my friends would say 'Yea, that makes sense. Why wouldn't condoms protect performers?'"

"In response I wanted to write a note about how policy may sound reasonable in theory, but in actual practice may do more harm than good," he told XBIZ. "Through my research I came to the conclusion that a condom mandate would not only hurt production companies' sales, but actually has the potential to do great harm to the performers that Measure B and AB 1576 are aimed to protect.

"Like I said in my note, Californians deserve serious legislation based on facts, not 'feel good' legislation based on assumptions."