As a journalist and author, I take threats to the First Amendment seriously. While speaking at the last Society intensive in San Diego, fellow author Michael Ellsberg (his most recent book is The Last Safe Investment), and I discussed a threat to freedom of speech and expression going down in California, via Proposition 60, the “Safer Sex in the Adult Film Industry Act.” Like many propositions, it is written on the ballot deceptively.
Michael writes below that this act isn’t actually about safety, but is using something people generally agree on (safe sex) as a smoke screen for a brazen attempt by one man to bring us back to the days of far-reaching anti-obscenity laws. Read Michael’s compelling argument on why you should vote “No” below—and spread the truth by sharing this post with as many people as you can.
Imagine if one single man had the power to censor all Hollywood films showing car chases, in order to promote the message that viewers should always drive 55 MPH. Imagine if this man could censor all films showing drug use, to send a message to viewers to lead clean and sober lives. And he could censor all films showing murders or thefts, to send a message to live on the right side of the law.
This Tuesday, Californians will vote whether to give one single private citizen, Michael Weinstein, head of the AIDS Healthcare Foundation, such censorship powers, not in Hollywood, but in the adult film industry.
Michael Weinstein has gone on-record numerous times arguing that porn should be required to show condoms, in order to promote safer sex among viewers. In one Huffington Post article, he wrote, “The fact that most straight porn is made without condoms sends a horrible message that the only kind of sex that is hot is unsafe.”
It’s a great message. But his solution to get this message out might as well be a plot-twist in 1984, with Weinstein playing the role of Big Brother. Via absurdly disproportionate and rabidly aggressive legal maneuvering in Prop 60, is he is trying to bully an entire segment of the entertainment industry into becoming one giant PSA for his preferred message that you should always use condoms.
To force porn producers and performers to spread his health message, Proposition 60 sets up draconian fines, reaching up to $70,000, for any producer whose content shows condomless sex [section 6720.4(b)]. (Since most performers also have their own sites and cam shows selling content directly to their fans, they are mostly all producers as well, and thus this law also targets them. Which is why nearly all performers in the industry vehemently oppose to Prop 60.)
As a comparison, in California, you could commit felony arson for about 30% off that penalty (just $50,000.) And you could bribe a police chief or district attorney for just a $10,000 penalty– 85% less than the penalty for uploading and selling one video clip of the kind of sex Michael Weinstein doesn’t think you should be having.
Weinstein knows that the California Division of Occupational Safety and Health (Cal/OSHA), the regulatory body that would be charged with enforcing Prop 60, has little interest in this issue. Cal/OSHA has to keep people who dig tunnels, build skyscrapers, and operate heavy machinery safe. In 2014 alone, there were 375 work-related fatalities in California, and not one of them on or from a porn set. There were fatalities from “violence and other injuries by person or animals” (75!), “transportation incidents” (119), and “falls, slips and trips” (72.) In contrast, there has not been a confirmed on-set transmission of HIV on a porn-set since 2004. In order to work in the industry, porn performers must undergo rigorous STD testing every two weeks, and this protocol has been working remarkably well to keep them safe.
Performers say that gutting this testing-based system, and replacing it with Weinstein’s system that relies on condoms (without required testing), will leave the performers themselves far less safe, for three main reasons. First, it does away with the mandatory testing, so performers will not know the STD status of their partners; performers find this prospect dangerous and terrifying, and far less safe than the testing-based system they’re currently using.
Second, condoms are designed for people who are only having sex for an hour or two at a time (at best!) In contrast, porn performers are often having sex for 6 hours or more in a day. Condoms cause chafing when used for that long, leading to micro-abrasions, tears, and cuts inside the vagina or anus. This makes performers much less safe when they go to work the next day.
The third reason Prop 60 makes workers less safe is more sinister. Unable to get Cal/OSHA to divert its attention from mines and bridges and factories, to porn performer’s crotches, Weinstein has hidden a dangerous and sneaky provision deep in the act. In section 6720.5, Weinstein creates a legal mechanism whereby, if Cal/OSHA doesn’t initiate action on alleged violations of the act, private California citizens (read, Michael Weinstein and probably a whole team he’ll set up for this purpose) can sue performers/producers directly, and get 25% of the penalty as profit.
On a fine of $70,000, that would be a $17,500 bounty per violation on nearly all porn performer’s asses. With Prop 60, Michael Weinstein is trying to turn the promotion of his preferred pro-condom messaging into a highly-profitable cottage industry for himself and his cronies, at the expense of performer’s safety.
That’s a money shot that performers/producers truly need protection from. But it’s dangerous way beyond money. It would allow any overzealous fan, stalker, or religious fundamentalist nut to get the real name and home address of porn stars via this provision and harass them ceaselessly. Violence and stalking against sex workers, particularly women, trans and queer sex workers, is a real danger for them, and this law would open the floodgates to that.
It’s absolutely outrageous that a man should be dressing up his safe sex PSA crusade in the guise of protecting workers, while exposing those same workers to very serious threats of stalking and harassment. This is why the main, performer-supported site against Prop 60 is called “Don’t Harass CA.” The act should not be called the “Safer Sex in the Adult Film Industry Act” This title is a classic (and predictable) example of Orwellian doublespeak, as the act would actually destroy the safety of adult film workers. Instead, it should be called the “Stalking and Harassing Adult Performers Act.”
Some porn performers/producers, who know that they’re in the business of selling fantasies, and who know that viewers don’t want to see rubbers in their fantasies, might follow the law but otherwise disguise the use of condoms, edit them out, or use angles that don’t show the condoms.
Not so fast! Condom cop Michael Weinstein, in his zealousness, is trying to force every performer/producer to make sure they’re showing condoms clearly and affirmatively in their content, for the safer sex messaging. If a performer/producer chooses to use angles where you can’t see the condom, or otherwise disguises the use of condoms, under section 6720(h), they’re presumed to be in violation of the law, even if they were in fact using condoms. This subjects producers/performers to vastly more liability, as even the suspicion that a condom was not used could land them in court. Michael Weinstein wants to turn California into the East Germany of safer sex.
Last month, over 100 porn performers took to the streets in one of the first and only political protests by porn performers ever on the planet, to protest Prop 60 in front of Weinstein’s office. When an act you’ve created to supposedly protect workers, has those same workers taking a day off from their work to hold placards denouncing you on your doorstep, you’re probably on the wrong track.
There are so many reasons to oppose Prop 60. The main reason is that the people most affected by it, the workers themselves, oppose it vehemently, and we should stand in solidarity with them.
But there are also deeper political and philosophical reasons to oppose the law. This is America. If you want to promote a message of safer sex, that’s great. Hire performers (the same performers who are protesting Prop 60!) and make porn that promotes safer sex. But in America you shouldn’t be able to use strong-arm legal tactics to force an entire segment of the media and entertainment industry to become the mouthpiece for your preferred messaging about healthy living.
As Chief Justice John Roberts has written in a Supreme Court decision, “Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.” In America, you can’t even force schoolchildren to recite the Pledge of Allegiance. You damn well shouldn’t be allowed to force an entire industry—whose bread and butter is selling fantasies of wild sex without consequences—to take on the function of what sex-ed classes should be teaching instead (if we had any real sex-ed in this country to begin with!)
You’d probably resent if a maker of green-shake mixes forced Hollywood to replace all scenes of people drinking beer with scenes of them drinking green shakes instead. For the same reason, you should resent that a single private citizen is trying to make the entire adult film industry become one big lecture on safer sex.
Why am I so personally passionate about this issue? I’ve been hearing safer sex lectures my entire life, and for the most part I’ve followed them. I’m near-religious in my use of condoms in my own sex life. I hate using them with a passion, as they kill most sensation for me, but I recognize they’re a necessary evil. Which is precisely why, when I enter into my fantasy life, I want no sight of condoms anywhere. My fantasy life is the last place I can enjoy sex without them, and I don’t want Michael Weinstein forcing them there.
With Prop 60, Michael Weinstein is trying to insert himself, and his views about safer sex, into my own fantasies, and those of the millions of other people who watch hetero and gay porn. Porn is, after all, about fantasy. With Prop 60, Michael Weinstein is saying that a certain kind of sex is so dangerous for everyone on the planet, you’re not even allowed to fantasize about it (and he’s going to shut down anyone who tries to produce representations of it), lest you get any wrong ideas about what kind of sex you should be having.
Basically, Michael Weinstein is trying to mind-fuck and Dom us, without consent, inside our own fantasies, to nip at the bud any chance that we might dream or get off on watching sex the kind of sex he thinks people shouldn’t be having. Michael Weinstein is trying to become the Big Brother of our bedrooms and our sexual imaginations. Even if you don’t watch porn, or don’t watch porn with cocks in it, I still hope you’ll join me in saying HELL NO to this kind of paternalistic intrusion into the fantasy lives of millions of Americans.
In article on the AHF website arguing in favor of requiring condoms in porn, because of the “broader public health benefit” of doing so, Michael Weinstein states, “People emulate actions, behaviors, clothing, hairstyles and other things they see in mainstream movies all the time—why would it be any different with porn? From Farah Fawcett hairdos in the ’70s to kids copying Jackass movie stunts today.”
True, people do emulate actions in movies. But, because of something called the First Amendment, there are not and cannot be laws against Farah Fawcett hairdos or Jackass stunts in movies—nor should there be laws forbidding people from watching the fantasy that just maybe, somewhere on the planet, someone is fucking without a condom, and having fun while doing so.
If you care about worker safety in the adult industry, please listen to the workers themselves, and vote NO on Prop 60. You’ll be joined by the California Democratic Party and the California Republican Party, both of which officially oppose Prop 60. (When you have Democrats, porn performers, and Republicans all agreeing in their opposition to a law, you know that law must be real piece of shit. It really is.)
Prop 60 is also opposed by the editorial boards of the seven largest newspapers in the state, including the Los Angeles Times, the San Francisco Chronicle, the San Diego Union-Tribune and the Sacramento Bee.
Finally, if want to live in a country where private do-gooders cannot censor the content and messaging of your own entertainment choices in your own home, then please vote NO on Prop 60 (even if you really hate Farah Fawcett hairdos!)
If Prop 60 passed, it would be an ominous day for the First Amendment, and a dangerous precedent for all of America.
Please share this with your friends who live in California, and join me on election day in voting NO on Prop 60!