OK if you havent read the discussion on the AB332 post you should…this is the discussion that the FSC SHOULD be having….
That said its time to educate some porners out there.
First of all AB332 is serious…if the legislature doesnt pass it it’s gonna end up on the ballot, so it’s gonna have to be fought.
Now when you fight this you don’t want to come off as morons right? Here’s some simple facts to help you. (except Mark kernes who is beyond help)
If you use the word Hazmat in reference to this bill you are an idiot
If you use the words dental dams in reference to this bill you are an idiot
If you use the words eye protection in reference to this bill you are an idiot
If you use the words body condom in reference to this bill you are an idiot
If you say we are the most tested people on earth you are an idiot
If you say that porn people have fewer stds than any other group you are an idiot
If you say its my body and they cant tell me what to do with it you are an idiot (and incredibly naive)
If you say porn will leave California you are an idiot.
Ok all that said you don’t want to sound like an idiot right? there are some smart people in this biz, people who can negotiate a reasonable solution (none of these people are in the FSC apparently) if you are to have a prayer of a reasonable solution you had better tap into these people…quickly.
thats y i luv chicago
Great blog as always Mike. You hit the nail on the head as to why I left the porn biz in 2011. “Too many idiots.” Keep up the good fight, you might be the only sane voice left.
You don’t really expect for the FSC to do any actual work now, do you??
Excellent points all Mike. However I expect the bill to pass ,no matter what anyone tries to stop it.Why ? Look no further than poster boy Mr. Marcus.
Nail in porn coffen on this issue happen right same time Mr. Marcus event took place. It was such cluster fuck that it proof with out doubt that porn indusrty could would change ways. If use ever thing in porn agrument coverd buy free speech agrument than you are as useless FSC is to porn inusdrty on fighting this. If real want look like village idiot keep repeating same thing FSC is saying lose this fight. You well lose agrument becuase FSC never won it.
You forgot aliens Mike. Everone forgets about aliens. It’s all fun and games until your getting your ass probed by a grey dude with a big head. Just saying. Wait a sec. What blog am I on?
Brooke…you crack me up….I like you LOL
well I’ll take that
Most people just get angry. You the man Mr. 
I have no doubt this will pass and fighting it is likely a waste of time. The performers who are against it are viewed either as morons or intimidated and the less producers have zero respect (which they more or less brought upon themselves). The industry, of course will not leave California so instead of wasting money trying to fight this they would be wiser to figure out how to live with it.
With all due respect to Ms. Patrick, who we all know recorded an anti-measure b psa, she recently announced her retirement from the industry 6 months after recording it. She will only be performing on her site which means a) she is now a producer herself and b) she gets to make her own rules and absolutely cannot be forced to do anything against her will by other producers/directors/agents.
As much as the anti-condom law people drone on about this being a free speech issue (often fans – many of whom likely don’t even pay for the stuff) this IS widely viewed as a workplace health safety issue by the people who count – the voters. The industry does not provide its performers with health insurance and forces the performers to pay for their own testing… they really don’t have a leg to stand on at this point imo.
Mike: I was out of town on business last week and missed the start of the discussion to the other blog. You and I have swapped enough emails to know that I think this is a work place safety issue, which trumps the First Amendment. That is, no artist or artistic organization has a first amendment right to expose their employees to a preventable health risk. To the contrary, a New York-based performance artist was successfully prosecuted years ago for staging an art exhibition that involved shooting him with a small caliber weapon in an area of his body that was unlikely to cause permanent injury. He argued that he had a First Amendment right. He lost. Similarly, mainstream action directors are not allowed to pursue their vision for stunts without ensuring that every protection has been put in place for the safety of the stunt person. And, if the stunt person is injured on the set, which happens, there is insurance and compensation for that.
All of that said, it’s a pretty thoughtful conversation you’ve got going on there.
BT, there are certain principles in constitutional law which DO trump work safety issues. Just as there are principles in constitutional law which trump public safety issues. I keep coming back to this example because it’s spot on: If a legislature tries to ban the burning of crosses, on the grounds that it is a real danger to society, that people get angry and fights and even murders ensue as a result, then that is no problem. BUT, if a legislature tries to ban the burning of crosses ONLY when it’s done on the basis of race, etc., then there is a problem and the law is facially invalid and will be struck down. See R.A.V. vs. The City of St. Paul. It makes no difference that there were safety concerns/issues. No legislature can target its laws against someone ONLY because of his viewpoint. Right now, the way 332 is worded it is just like the law in R.A.V. It ONLY applies to people whose speech is “for the sexual stimulation of the viewer.”
Now, to be sure 332 can be easily cured by removing that language and making it apply to ALL works involving “representations of sexual intercourse,” whatever that means. If it doesn’t, then the law is facially unconstitutional and will be struck down. Makes no difference that there were safety issues. Chief Justice Roberts recently made clear that the First Amendment doesn’t get set aside just because the relative costs of free speech seem to outweigh the benefits. Certain principles in First Amendment law ARE absolute, or as close to absolute as any principle in American law can be. Only by radically revising the meaning of the First Amendment can that fact be changed.
Alex: I mean this with all due respect – please don’t interpret this as a flame war. I take the First Amendment pretty seriously. Unlike many of the folks who write about this stuff on Mike’s site, I’ve made my living as a professional writer for 30 years. I’ve worked in mainstream television; I write for national magazines. What’s more, unlike most of the folks who contribute to these sites, I’ve defended my work in court. I was sued three times for libel by the subjects of magazine pieces and I won every time. I’ve sat on a witness stand in Federal Court and defended my work, along with my editors and publishers. I cherish the fact that the First Amendment has worked in my favor. That said, cross burning/public safety is different from producing porn and workplace safety. Cross burning, like the Klan marching in Skokie, is about whether speech is offensive. The fact that an individual or group of individuals may take offense at something you or I say and want to take a poke at us is not a reason to prohibit speech. The constitution protects offensive speech, even if that speech may be so offensive that it provokes another individual to take some kind of action. The fact that an individual may be so provoked that they may or may not commit a violent or illegal act is not a reason to limit the publication of speech – you can’t have prior restraint on a theory. However, you can prosecute that violoent or illegal activity after publication – the First Amendment does not protect you from the threat of legal action. And, you can prosecute the person whose speech led to violence or illegal activity if you can prove cause and effect. I may have a First Amendment right to publish something that is intended to provoke an individual to commit a crime – within certain limits, like not being allowed to yell fire in a crowded theater. My intent might even be to incide a riot when I publish. Again, within limits, the government can’t stop that. But, if I’m successful, the government can try to punish me after the fact if it can prove that was my intent. Even if I don’t face criminal prosecution, I can be sued for damages in civil court. Similarly, there are already limits on sexual expression. I can’t publish child pornography or bestiality – in the case of child pornography, there’s no First Amendment right to publish illustrations. So, there are limits.
Workplace safety, which is where the condom issue comes in, is a different thing from the threat of a fight between individuals or a riot in the streets. No employer has a First Amendment right to put employees at risk of a communicable disease or infection in order to realize an artistic vision. That is especially true if there are measures to prevent the spread of the disease. They have to take reasonable steps to ensure a safe workplace – it’s the reason that stunt men wear protective gear on a mainstream movie set. You can film an outrageous stunt to realize an artistic vision, but producers must take steps to avoid preventable injury and death. If they didn’t – if they can’t demonstrate that a set is safe – then a production can’t get liability insurance. Without that, cameras don’t roll.
Thanks for that thoughtful reply, BT. I do think you have not fully understood my argument, though–since the points you raised mostly have little or nothing to do with the doctrine that prohibits content-based restrictions on speech.
First of all, some errors. You stated that the First Amendment does not protect you from the threat of legal action. Actually, it DOES: several laws giving a private right of action to people injured by speech have been struck down on First Amendment grounds (remember MacKinnon’s would-be law? The 7th Circuit smacked it down without any problem on free speech grounds). In fact, there are actually very few situations where someone can be sued for protected speech–the law of slander and libel is exceedingly narrow, for example, and seems to get narrower every decade. To be sure, if your speech is performed in the commission or preparation of a crime–like if your speech involves planning a robbery or convincing someone to kill somebody, etc.–then you can be punished, but that is quite remote indeed from the kind of thing we’re talking about here.
You said, “you can prosecute the person whose speech led to violence or illegal activity if you can prove cause and effect.” That is true only in scenarios where the speech is involved in the crime–like planning a robbery, or convincing someone to kill somebody. But if I write a book about how social revolution is the only way to fix our current political and economic problems, and someone reads it and the book causes him to go out and riot, etc., that does NOT mean I can be prosecuted for my speech. I can’t. And you can’t sue me civilly for such speech either. If you could, then the First Amendment would be wholly meaningless, since any time anyone got any idea from any instance of speech that led to harm, the speaker could be sued and nobody would ever say anything controversial ever.
Here is where I think you still don’t understand my argument. You say that “No employer has a First Amendment right to put employees at risk of a communicable disease or infection in order to realize an artistic vision”. BT, please understand me: I AGREE WITH YOU. You are absolutely right. BUT, what the government may NOT do is selectively apply such regulations ONLY onto people, say, who have a Marxist message to tell. Or a Christian message to tell. That is a flagrant violation of fairly absolute First Amendment principles, and any good appellate court would strike such a law down. Likewise, you can’t selectively apply such a regulation ONLY to people who have a sexual message to tell. The government can require such regulations of ALL people engaging in the filming of explicit penetrative sex, etc. But it may not say, “This law only applies to speech with a marxist message.” It may not say, “This law only applies to speech with a Christian message.” It may not say, “This law only applies to speech with a sexual message.”
Does that clarify things for you?
The general rule of thumb is imminent danger–if an instance of speech is likely to cause harm or violence immediately, imminently, without the opportunity for rational reflection, etc., then the speech can be punished.
Couldnt it be argued that the exposure to OPIM, which is the very heart of the porn production(semen in the mouth) is likely to cause immedeate harm to the performer. Could it not be argued that semen, ejaculated directly into the rectum, mouth, vagina, eyes,ect., could cause immedeate harm?
Sure, but that isn’t the point of that doctrine, which only deals with the effect of the speech on the *recipient* or audience of the speech.
In other words, the government does not need to show imminent danger in the PRODUCTION of sexually explicit speech. If it can show just possible danger sometimes, then it can regulate the production of speech, no problem. But what it may NOT do is choose to regulate ONLY the speech with a certain message to tell. It has to regulate everyone engaging in the harmful behavior–it can’t say, “Only people with a conservative message to tell have to follow the law.”
Alex, isnt imminent danger during production EXACTLY what OSHA regulations cover? Do you think the government would have any problem showing the imminent danger to the emplyees on the porn sets?
Once the language of “stimulationof the viewier’ is removed, do you see any other constiutional problems with this law? Your insightful opinions are much appreciated.
Yes of course, and forgive me if my exasperation shows through, lol, but it seems I’m still not being understood. The government does NOT need to show imminent danger at all to regulate the production of sexually explicit speech. It can just say, “Oh here’s a problem, we’ll regulate it through workplace regulations.” No problem. What it may NOT do is say, “Oh here’s a problem, but we’ll ONLY regulate this problem when the speaker has an anti-religious message to tell,” or whatever viewpoint you want to put into the blank.
Alex, I think we share the same frustration. What happens on a porn set is obviously an imminent danger to the performer, regardless of the message of the created speech. And these dangers occur BEFORE anybody has viewed the created material, so of course the reaction of the viewer is irrelevant to the action that causes the imminent danger.
So my question is, if the definition in this proposed legislation is changed, do you see any other possible constitutional challenges to this law? And as you stated, do you think the government would have any problem showing ‘possible danger sometimes,then it can regulate the production of speech.” I think the government would have no problem proving this, I am just wondering if you agree? And again, thatnks for your responses.
It is my opinion, yes, that the government can regulate the production of sexually explicit speech. I don’t think this raises any real constitutional issue. 332 is fatally defective only because they went out of their way to make it apply ONLY to people with a certain message to tell. If they make it apply to everyone engaging in the production of sexually explicit speech, then I think it is much more likely to be upheld.
The only other place where the law seems very peculiar is in the definition of the speech itself. “Representation of sexual intercourse.” What on earth does that mean?? Hardcore, sure. But softcore? Breast groping? Kissing? Fetish? Spanking?
The law would probably need to be fleshed out–either by the legislature or else by the courts. As it is now, no one has any clue how broadly the law applies.
Alex: Remember, while there is a First Amendment right to possess porn, there is no established First Amendment right to produce porn.
The First Amendment does not protect obscenity. Now, I will agree that no one has defined obscenity on a national basis and there’s whole community standard thing which has hung the government up. But it is not an absolute right. Just ask Rob Black, Max Hardcore or that Ira guy in LA.
So, while the limits of what is and isn’t fair game may be murky, we know that there are some limits to what can and can’t be produced if the right prosecutor in the right locale decides to pitch a fit.
What’s more, it’s apparently legal to regulate the production of porn. Or at least the industry has not chosen to challenge the laws on constitutional grounds. Most states except for California and New Hampshire have outlawed its production in their borders.
The government already regulates some aspects of porn, such as record keeping. Heck, its illegal to sell sex toys in a number of states.
For one of us to be right, both a state and the industry have to be willing to pick a fight and take it all the way to the Supreme Court. I for one would not be sanguine that a conservative court like the current one is going to overturn a condom law if the argument is that the only way a pornographer can realize their artistic vision is to film any act they wish without condoms while exposing the actors, the crew and their family and loved ones to potentially life threatening diseases. The argument that the industry often makes – the public doesn’t like it – isn’t a constitutional argument.
Again, I’m afraid I must tell you, BT, that I agree with most of what you say, and that most of what you say is 100% correct.
However, what you say is also 100% irrelevant to the precise legal issue that I have been at pains to point out.
Your remarks on obscenity are largely correct and I agree. But obscenity is irrelevant. We absolutely DO have a First Amendment right to produce porn–as long as it’s not obscene. And until there is a controlling Supreme Court (or at least California) case declaring all porn obscene, the government may not assume that any instance of speech is obscene. Obscenity is a crime and it would obviously violate due process rights if speakers were *presumed* by the government to be criminals before they even had a trial.
I agree that the production of sexually explicit speech can be regulated (2257, condoms, etc.). But that, too, is 100% irrelevant. I keep saying–fruitlessly, it seems, since you don’t seem to be hearing me–that I AGREE that the production of sexually explicit speech CAN be regulated. Condoms CAN most likely be mandated. That has nothing to do with the issue of whether any given law is impermissibly content- or viewpoint-based, however.
Since my efforts so far have failed, allow me to try this one last time, this time with a very blunt example.
We all know and agree that the government can prohibit MURDER. No problem there. We all know and agree that the government could, if it wanted, create a special penalty for murder that, lets say, arises as a result of a heated argument. (Lets just assume there is some legitimate reason for such a law.)
So far so good. But what the government may NOT do–never do–is pass a law creating a special penalty for murder that arises from a heated argument, but ONLY when the person committing the murder was trying to communicate a left-wing viewpoint, or a christian message, or a conservative idea. THAT makes the law impermissibly content-based and it would be struck down by any remotely intelligent appellate court.
So you see: If a prohibition on MURDER can be struck down when it’s impermissibly content based, then why do you think a workplace safety law could not? Of course it will be struck down. Honestly, the law is the kind of example that law students PRAY will be on their con law exam, because it’s so obvious and easy.
You seem to view this issue in terms of costs and benefits, risks and dangers, etc. But when it comes to this kind of bedrock principle of constitutional law, there is no cost/benefit analysis. Again, I refer you to the words of our (convervative!) Chief Justice:
“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.”” United States v. Stevens (2009).
The conservative character of the Court also doesn’t seem to matter–the two Justices I’ve quoted most often have been Roberts and Scalia.
I might also point out something funny in this discussion we’ve been having. Twice you’ve said something about someone needing to film condom-less sex in order to fulfill an artistic vision. Well, under 332 as it is currently written, if a speaker could prove that his film was NOT “for the sexual stimulation of the viewer,” but was instead for the artistic edification or aesthetic fulfillment of the viewer, then 332 would NOT apply! The law is very explicit and clear about that. It ONLY applies to speech that is for the sexual stimulation of the viewer.
And that, my friend, is precisely why the law is unconstitutional on its face.
And in case my murder example was too complicated, let me say it again in a more abstract way. The government may not pass ANY law of ANY type which punishes or restricts only those speakers that are trying to communicate a particular viewpoint. NO law. Doesn’t matter what law it is–workplace safety, criminal law, tax law, etc. DOES NOT MATTER. If the First Amendment means anything, it means that the government cannot selectively punish people for their beliefs or for the viewpoints they seek to communicate.
The only time the content of speech can be punished is when it already falls within one of the very few categories of speech excluded from First Amendment protection–obscenity, fighting words, child porn, etc.
If you look at the actual bill that is now in the legislature there is a heading under the word “Version” that says “Introduced” That is the form that the bill is now . Virtually all bills are not passed as they are introduced, parts are added, deleted, and modified, and I have little doubt that the changes that need to be made to this bill will be done before the final version is passed