Michael Weinstein to Porn Industry about Condom B Lawsuit: Nice Try But a 1st Amendment Argument Won’t Stick

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LOS ANGELES—-After months of threatening to do so, Southern California’s porn industry has filed a lawsuit seeking to block implementation of Ballot Measure B, the County of Los Angeles Safer Sex in the Adult Film Industry Act. The condoms in porn measure was spearheaded by AIDS Healthcare Foundation (AHF) which Los Angeles County voters passed with an overwhelming margin of voter support—57% to 43%—in the November election.

“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”

The lawsuit, with Steve Hirsch’s Vivid Entertainment as lead plaintiff, was filed yesterday in United States District Court, Central District of California. The suit names the County of Los Angeles, Dr. Jonathan Fielding, Director of the Los Angeles County Department of Public Health and County District Attorney Jackie Lacey as Defendants and seeks to block the law primarily on First Amendment challenges.

“The adult film industry has every right to pursue its day in court to try and address concerns about Measure B; however, we are confident in our position and in the legality of Measure B. We believe it is extremely unlikely that the porn industry will prevail here either on its First Amendment claims or questions regarding who has regulatory authority over the industry—the State of California or the County of Los Angeles,” said Michael Weinstein, president of AIDS Healthcare Foundation (AHF).

AHF is one of the five named proponents of the ballot initiative.

“Regardless, we are going to keep fighting for the safety of the workers in adult films in California and elsewhere and will seek clarification from state officials and in the state regulations overseeing the health and safety of workers in these films.”

“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,” said Tom Myers, Chief of Public Affairs and General Counsel for AIDS Healthcare Foundation.

“Measure B is about safety in a commercial endeavor. Nothing in Measure B restricts the content of what can be shown. However, as soon as an adult performer accepts money for performing in a film, a whole host of worker safety laws kick in.

“In non-adult films, we don’t let people take chances that can harm themselves or others, with pyrotechnics, for example, just because they feel their creativity or expression would be stifled otherwise. The same reason one requires condoms is the same reason a stunt man or woman would have to use a net, or be tied to a harness.”

Los Angles County Ballot Measure B, the County of Los Angeles Safer Sex in the Adult Film Industry Act, which AHF spearheaded, passed with an overwhelming margin of Los Angeles County voter support—57% in favor to 43% opposed.

The ballot measure now requires producers of adult films to obtain a public health permit from the County, follow all health and safety laws, including condom use, and pay a permit fee to cover enforcement of the law. The measure was spearheaded by AHF and members of the advocacy group, FAIR (‘For Adult Industry Responsibility’), after as many as 22 HIV infections believed to be industry-related were reported in several outbreaks in Los Angeles since 2004, and amidst thousands of sexually transmitted infections (STIs) occurring annually among adult performers.

“Unfortunately, the industry has tried everything so far except exploring how they might actually comply with the law,” added AHF’s Weinstein.

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