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August 16, 2016

Ramifications of Prop 60 Reach Far Beyond Calif.

SACRAMENTO, Calif. – Think California’s Proposition 60 — the notorious statewide “condoms in porn” ballot initiative — won’t affect you if you live and work outside California?

Think again. According to attorney Karen Tynan and a spokesperson for industry trade association Free Speech Coalition, if California voters approve the measure in November, the implications reach far beyond the Golden State.

Legislation similar to Proposition 60 has died in one committee or another several times since the prototype ordinance, Los Angeles County’s Measure B, received voter approval in 2012. When AIDS Healthcare Foundation founder and president Michael Weinstein — the drafter, financial backer and most vocal proponent of Measure B and the defeated bills — couldn’t get legislation through the statehouse, he decided to use a statewide end-run like the one that worked in L.A. County: Bypass the legislature and put the issue before the voters themselves.

Proposition 60 — officially the Safer Sex in the Adult Film Industry Act — contains even more onerous terms than either Measure B or previous statewide legislative proposals. Among the notable mandates in the initiative are massive fines on studios and independent participants who don’t employ all available barrier protection on-set. Prop 60 also contains provisions that would allow any California resident to sue performers and producers whose products appear not to comply with the law, as well as a provision appointing a salaried statewide “porn czar” who could be removed from the position only by a supermajority vote of both houses of the state legislature.

So why should industry insiders who go nowhere near California worry? For one thing, in 2012, flush with a condoms-in-porn victory in Los Angeles, Weinstein told The New York Times he would mount the same offensive in other states should the adult entertainment industry abandon California.

Attorney Karen Tynan, who has who has defended several adult production companies against health code violations alleged by the California Division of Occupational Safety and Health (Cal/OSHA), said passage of Proposition 60 could precipitate a significant domino effect.

“Michael Weinstein has said California is simply the thin end of the wedge, and other states will be targeted after success in California,” she said. “People in Nevada, Arizona, New York and Florida [all home to a good number of adult entertainment studios] should be worried, absolutely.”

According to FSC Communications Director Mike Stabile, a California law affecting an industry as far-flung as adult unavoidably will snare law-abiding producers in other locales. No matter where they reside or usually work, anyone who travels to California to film will be subject to the law, should it pass.

But that’s not the biggest problem.

“This [ballot initiative] allows any resident of California to sue a producer, distributor, affiliate, performer, cam site, or anyone promoting content of any kind, no matter where it’s produced,” he said. “So, even though companies outside of California aren’t legally liable [under California law], they’ll still likely have to face a spate of lawsuits proving that [their product was] not filmed [in California].

“Some companies that don’t produce in California are looking into blocking California IPs [internet addresses]” in order to limit exposure, he added. “[Prop 60] is a tremendous legal liability for the entire industry.”

Both Tynan and Stabile expect out-of-state productions to be targeted as frequently as those produced in California, if only because production locations can be difficult for the average viewer to determine…and many won’t care about the specifics.

“Anything that’s sold in California is likely to be subject to lawsuits,” Stabile said. “Most people assume porn is shot in California, so it’s likely we’ll see lots of people caught up in this, no matter where they are. Under the initiative, these lawsuits cannot be easily dismissed in the demurrer stage [the pretrial stage in which the defendant pleads for dismissal on the basis the suit has no legal merit]. They will require significant legal response in order to prove that either a condom was used or the film wasn’t shot in California.”

Tynan called the legal framework the initiative would establish “a tangled mess” and indicated producers targeted by lawsuits may find themselves in a nightmare with no chance to win. For example, what constitutes “production location” when a cam show is streamed live on the internet? The courts haven’t yet faced that question.

The burden of proof in the lawsuits, she noted, will be on the defendants.

“It will be a case of ‘file the suit and then figure out [the facts],’” she said. “The location of the scene production will be difficult to prove or disprove. That will become the defendant’s burden. It is a difficult distinction because of distribution by cable companies and internet providers.

“It’s very clear that a judge could see the problems with the proposition and the negative impact on California businesses and workers,” she added, but by the time a judge sees the case, defendants may have exhausted their financial resources mounting a defense.

Worse still, Proposition 60 encourages private citizens to file lawsuits that might be considered frivolous in any other setting by offering a bounty: a 25-percent cut of the judgment levied against producers, talent and distributors who are unsuccessful in defending their cases. Unsuccessful defendants also must pay the plaintiff’s legal fees, although the same is not true in reverse.

“These small businesses can’t afford to take on big plaintiff law firms that are trying to win attorney fees,” Tynan said. “The writers of the initiative made the condom presumption language so favorable to Michael Weinstein and plaintiffs’ lawyers that it will be difficult for any performer or company sued to get rid of a frivolous suit without spending tens of thousands of dollars.”

According to Stabile, the initiative could represent a windfall for anti-porn activists and anyone else who likes the thought of profiting without risking an investment.

“We’re looking at the possibility of not only citizens, but a cottage industry of lawsuits from within the state going after as many productions as possible,” he said.

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