Prop 60: Why The Battle Doesn’t Stop at California

This article ran in AVN magazine's October 2016 issue as part of a cover package exploring the war on porn. See the digital edition here. This article was written by Eric Paul Leue, the executive director of Free Speech Coalition. A lot of people in our industry think that California’s problems—a dangerous ballot initiative, and industry-ending workplace safety regulation—will only affect California companies. For those who have already moved production out-of-state, to Vegas or Phoenix or Miami or Mexico or Barcelona, this may be a comforting thought. Unfortunately, it’s not true. The twin initiatives we face in California today both have serious repercussions outside the state, and it’s crucial that we fight them here—in the place we’re politically strongest—this year. This has been a long fight, but with a Cal/OSHA victory, we have a chance to finish the battle once and for all. However, if we let California fall, Prop 60 will not only destroy California production, it will create costly liabilities for every adult company—no matter where they are. For those who haven’t been involved in the fight so far, here’s a short guide to Prop 60 and the Cal/OSHA regulations—and how what happens in Sacramento this year will affect producers across the globe. Proposition 60 Proposition 60 is a measure on the November ballot in California that goes far beyond previous legislative attempts to mandate condoms in adult films. It permits any resident of the state to sue anyone who is deemed to have a “financial interest” in the production—including, but not limited to the producer, performer, agent, distributor, website operator, cam site, affiliate or retailer. It also imposes the same liability against anyone who has ‘aided and abetted’ the production or distribution, which by California law includes payment processors and merchant services. Anyone who makes money from the sale of an adult film without condoms can be sued by anyone in the state of California with a laptop. Of course, the measure specifies that only California productions are liable. The problem? Few people watching an adult film know where it was produced, which means that most of you will be facing lawsuits, no matter where you shot it. If you can show you produce out of state, you might eventually defeat such a suit—but not before hiring counsel, filing responses, and showing up to court. (Unfortunately, these are not dismissible cases at the demurrer stage, meaning that even if you win, you’re looking at an estimated $25K just to have the suit dismissed.) And even if you use condoms, the initiative includes a “rebuttable presumption”—meaning that if they can’t be seen in any given shot, you’ll have to prove in court that they were used. Can’t see the condom in a trailer? A promotional GIF? A box cover? All fall under the initiatives definition of an “adult production.” Get ready to hire counsel. Further, Proposition 60 gives anyone who brings a successful suit a portion of the fine levied—and makes you pay their legal bills—so there’s a profit motive that will move this beyond Michael Weinstein and the anti-porners, and into the hands of for-profit legal firms. We’re looking at potentially thousands of lawsuits against producers and performers and distributors in the first few months after it’s passed. Several prominent producers have discussed blocking IPs from California entirely, calculating that the loss of the California market is less than the cost of endless litigation. This is a frightening prospect, and a dangerous precedent. It’s meant to help the state enforce Cal/OSHA regulations, which are being developed simultaneously, and go even further. Cal/OSHA Cal/OSHA is charged with protecting workplace safety in California—but its influence goes far beyond the Golden State. Last year, Cal/OSHA attempted to write specific regulations for the adult industry on AHF’s urging. Predictably, the results were ludicrous. Interpreting a federal “universal precaution” standard, the Cal/OSHA Division drafted regulations that banned fluids like semen, pre-ejaculate and vaginal secretions from having any contact with any mucous membrane (think eyes, nose, mouth, genitals). That meant condoms for anal, vaginal and oral sex. Eye protection for facials (squirting and cum shots are unpredictable). Latex “dental dams” for oral sex, even girl-girl. The press had a field day, but Cal/OSHA did not. Prompted by the AIDS Healthcare Foundation, Cal/OSHA has repeatedly tried to sideline objections of performers and producers. We defeated the draft regulations, and forced them to give performers and producers a place at the table, but AHF is geared up for battle—and they routinely outspend us 10-to-1. Should AHF’s regulations pass, it will effectively outlaw most adult production in California. And coupled with the enforcement mechanism of Prop 60, complaints will no longer be limited to those on Michael Weinstein’s hit list. But even outside the state, California Cal/OSHA regulations would likely be the template used for other states, and perhaps even a federal guideline. On the other hand, if we’re able to include a progressive protocol that puts performers in control, that will be the standard likely adopted outside the state as well. While it has taken nearly seven years to get to this point, a Cal/OSHA victory for AHF here would be more easily replicated in other states, and in much shorter amount of time—a domino effect for other states. It’s crucial that we establish the standard on our terms. For the industry to thrive, we must be legal, stable and above ground. The Bottom Line We have had some incredible victories already, and momentum is on our side. In February, we were able to stop the draft "condom and goggle" regulations at Cal/OSHA from becoming effective, and in August, we stopped AHF from hijacking the process. In the past 12 months, the industry has seen both Measure B and 2257 effectively neutered. And we’ve gotten all major political parties—Republican, Democrat and Libertarian—to oppose Prop 60. We’ve had strong opposition from editorial boards of leading newspapers, like the San Francisco Chronicle and the San Jose Mercury News. We have a list of opposition to the Proposition that outguns AHF, and more are joining our side every day. We can defeat Prop 60, but not if we don’t have the resources to get the word out. Unlike AHF, we don’t have millions of dollars to spend on ads—a crucial driver in ballot initiatives like Prop 60—or lobbying Cal/OSHA. We face a tremendous deficit. In the next few months, we have twin challenges that Board Chair Jeffrey Douglas has called “the gravest threat to the adult industry since the Nixon administration.” We are lean, we are tough, and we are smart, but we need your financial help to carry it off. No matter where you are, no matter where you produce, the Battle of California affects you. I ask that you join us at Free Speech Coalition and help us stop it here, before the War on Porn spills across any more borders.