Michael Weinstein: Can You Challenge a Workers’ Safety Law as a Free Speech Issue?

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From the LA Daily News: Attorneys for the adult film industry plan to file a lawsuit soon that challenges the validity of Measure B, a voter-approved law that makes it mandatory for adult film actors to wear condoms while shooting pornographic scenes.

“The industry has organized a team of highly respected attorneys to protect our First Amendment rights. I am confident that we will prevail and ultimately save L.A. County millions of dollars as well as save thousands of jobs,” said Steven Hirsch, founder/co-chairman of Vivid Entertainment, in a statement.

Vivid Entertainment is one of the largest studios in Los Angeles that produces adult films.

Los Angeles County voters passed Measure B in November. Introduced and supported by the AIDS Healthcare Foundation, Measure B also requires adult film studios to apply for public health permits and for the county Department of Public Health to lead inspections and enforcement efforts.

Violators could face civil fines and criminal charges, and the Department of Public Health will be able to revoke the public health permits if it finds violations or a risk to public safety.

The law is expected to take effect on Friday, according to county officials.

Adult film industry representatives wouldn’t say exactly when they’ll file the lawsuit – just that it will be soon.

Attorneys for the adult film industry plan to challenge the law in the U.S. District Court for the Central District of California, asking
if the county officials have jurisdiction to regulate adult production on performer health and safety. Condom use on porn sets already is required under state and city laws. But those are rarely enforced, with state inspections and consequent fines based only on complaints.

Actors have defended the porn industry’s voluntary guidelines, under which performers are tested every 14 and 28 days for HIV, gonorrhea and chlamydia. Actors and directors then view each others’ medical records, to make sure health tests have been passed.

“This law will waste taxpayer dollars and compromise the effective performer health protocols already in place,” said Diane Duke CEO for the Free Speech Coalition, an organization that represents the adult film industry.

“They have a perfect right to file a challenge in court,” said Michael Weinstein, president of the AIDS Healthcare Foundation. But he questioned whether they’d be successfully challenging a workers’ safety law by saying it violates freedom of speech.

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