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Richard Abowitz interviews Paul Cambria at www.thedailybeast.com – At the nation’s largest porn trade show, Adult Entertainment Expo, the big topic on the convention floor was Measure B, the new ballot initiative passed by Los Angeles County voters that requires the use of condoms on the sets of adult films.
Yet Paul Cambria, the industry’s best hope to escape the law overwhelmingly opposed by porn performers and others in the industry walked the floor in a brown zipped-up coat, barely noticed. Last week, Cambria filed a lawsuit representing the porn company Vivid Entertainment and performers Kayden Kross and Logan Pierce aimed at stopping Measure B.
For years Cambria has been the go-to lawyer for the porn industry’s biggest fights, representing among many others Larry Flynt, as well as winning an acquittal in the high profile 2010 obscenity trial of Evil Angel owner John Stagliano (www.reason.com/archives/2010/07/12/the-trial-of-john-stagliano).
His long list of sex acts that he recommends pornographers not film to avoid obscenity charges (no food used as sex objects, no coffins, no wax drippings, etc.) is known in pornland as “the Cambria List”. [Ed’s Note: courtesy of yours truly]
Yet, Cambria has kept such a low profile (raised somewhat Thursday night when the Colbert Report skewered him) that many in the industry have never seen him. This point was brought home in the middle of this interview when Kayden Kross, a plaintiff in his Measure B case, walked by and I introduced the client to his attorney.
Cambria outlined for the Daily Beast his legal strategy that he says will stop the law that the porn industry has come to view as an existential threat to profitability, and as creating a slippery slope leading to government control of their content.
The Daily Beast: How did you wind up involved in this Measure B fight? Did you search for the right client or did the industry seek you out?
Paul Cambria: How this all came to pass is that a number of the major production house owners contacted me and asked me if I would get involved. Eventually Steve Hirsch [head of Vivid] asked if I would be lead counsel and I would select whomever I wanted to work with me.
TDB: Why of all the companies was it Vivid carrying this case?
PC: There are hundreds of companies. But historically there have always only been a handful that are proactive and will take the leadership to protect the industry. Recently it has been Vivid, Adam & Eve and Evil Angel. They are the ones who are proactive about protecting the business.
TDB: How can you object to the right of LA County voters to decide how porn gets shot in their community? Isn’t that their right?
PC: You don’t have a referendum on First Amendment rights. If that were the case then the majority of the population would dictate the content of our movies, our speeches, and our songs and all other things that are expressive. So, referendum never makes it in the First Amendment area. In fact, it is the opposite. The First Amendment does a better job at protecting those in the minority because what they may say, do or express is unpopular and thereby needs to be protected. It is always someone who may not have a popular thing to say but they still have a right to say it.
TDB: How do you respond to the argument that this isn’t about expression but about workplace safety as when a construction worker is required to wear a hardhat?
PC: The difference is that there isn’t any First Amendment issue for the construction industry. Also, there isn’t any alternative that works just as well as a hardhat in the construction industry. In the adult industry we have testing and enhanced testing. The other thing—it is happening already—if the goal is to protect workers, instead you are driving them overseas where there is not testing and no protection. You failed in your goal.
The difference is that everyone who wants to build in California has to follow the same rules and wear the hardhat. Everyone who wants to make an adult movie doesn’t have to make it in California and so they are not bound by the same rules. They can make it in Mexico or Europe and still be able to distribute the movie here. So, it is a lot different than the hardhat situation.
TDB: Can you explain how a condom limits a First Amendment right to expression?
PC: There are several prongs to the argument. The First Amendment protects you to express yourself without any restraint prior to you expressing yourself. In other words, you can make a movie and you can distribute it before jumping through any government hoops.
Now, it may be that the government takes the position it is obscene and they’ll prosecute you for it. But they haven’t previously restrained you from the expression. The Supreme Court has said for years, and years, and years, that in the First Amendment area there are no prior restraints. This statue imposes a prior restraint as follows: you must get a permit, you must have training in blood-borne pathogens, and you must film the movie with a condom. Those are three incidence of prior restraint before you can do the expression. That is the first part.
Next, they, the government, are now dictating to you how you have to film the movie. And, they are dictating how part of that content will be. That is it will be sex with a condom. For example, if I am doing an adult movie about a husband and wife and they are trying to conceive and they can’t. She gets the idea to just have sex with this bowling team and not tell him. One of those guys will get her pregnant and they live happily ever after. I can’t make that movie because they will have to wear latex condoms.
That is all outside the final issue, which is if this is the least drastic means of accomplishing the government’s goal. This is what you have to prove in First Amendment issues dealing with content discrimination. Is this the least drastic means or is medical testing the least drastic means?
TDB: Very recently, a performer, Mr. Marcus, easily circumvented the industry testing and worked with syphilis. Wouldn’t that suggest the testing system is not particularly effective and therefore unacceptable?
PC: The problem with that is there is no demonstration that he contracted it in the adult business instead of in his private life.
TDB: Nonetheless he worked in the business while he was positive for syphilis without condoms.
PC: But he was tested and it was detected during his adult performance.
TDB: But he altered his test and kept on working without a condom. Doesn’t that say clearly testing isn’t enough?
PC: Anyone can commit a crime. And, if you commit a crime we’re stuck with that. That happens. But that doesn’t scrap the whole system, because one person committed a crime.
TDB: Is it a crime to alter a test in a voluntary system?
PC: I think so. It is a voluntary system with an agreement and with a health hazard. I think you can argue it is a form of assault or battery when you intentionally infect someone with a disease and you lie about it. But that is besides our point. He could agree to wear a condom and in the middle of it, pull the condom off and put his dick in this girl. He could do that too.