Summary of the Issues
Even if you support the overall intention of protecting the health and safety of workers on porn production sets – especially if you support that – Prop. 60 is deeply flawed and voters should reject it and vote no.
- The language of Prop. 60 is poorly drafted and deeply flawed.
- Prop. 60 codifies a health protocol that would remain enshrined in law even if it becomes outdated – as it rapidly may be – and only the voters would be able to change it. Initiatives like this should provide a broad framework while giving regulatory agencies the flexibility to adapt and health and safety standards change. Prop. 60 doesn’t do that.
- Prop. 60 would lead to many lawsuits, many for reasons of harassment rather than health and safety, that could threaten the safety of adult performers.
- Prop. 60 would violate worker privacy, including potentially making the real names and home addresses of porn performers public.
- Most porn performers oppose it, including the only organization in the state solely representing porn performers.
- In the event that the Attorney General decides not to defend the initiative in court, the proposition would instate the Michael Weinstein as a state employee to defend the initiative in court at taxpayers’ expense, and only the California Legislature would be able to vote the proponent out of the position if necessary, and even then only under limited circumstances.
- The proposition would cost taxpayers millions of dollars unnecessarily.
- The initiative has drawn broad opposition from political groups across the spectrum as well as numerous HIV & AIDS organizations, healthcare organizations, progressive and conservative groups, and more.
Details of the Issues
Prop. 60 codifies a health protocol without any ability to adapt to changing conditions.
I absolutely understand and support wanting to make sure that porn performers’ health and safety is ensured, and that the producers pay for whatever testing, equipment, and protocols are necessary for that.
But Prop. 60 is way too specific and inflexible.
Legislation that was properly crafted would have created the broad framework of protecting porn performers by directing Cal/OSHA or a similar agency to promulgate workplace safety regulations on the set (which, by the way, is already the case) without being specific about the use of condoms or other specific safety protocols. Things change.
In addition to before-shoot HIV testing which has been an industry standard on both straight and gay sets, Pre-Exposure Prophylaxis (PrEP) is now an increasing part of the HIV prevention tools in the gay community and in the porn industry. PrEP is the use of prescription drugs (currently only Truvada) taken by HIV-negative individuals that can block HIV from infecting healthy cells.
I was wary of PrEP when it was first introduced. I’m on medication for high blood pressure and high cholesterol, so I fully respect the value of daily prescriptions in saving lives, but the daily use of prescriptions for young and otherwise healthy individuals seemed like a pretty drastic step, especially without knowing the long-term health ramifications. But usage so far has shown some pretty dramatic results, with fears of accidental infection from people forgetting the occasional dose so far appearing to be extraordinarily low, and HIV infection rates among those who use it plummeting. Proper use is showing a 92% to 99% reduction in HIV risk among HIV negative people who take the medication as directed.
That said, I’m not saying PrEP is necessarily the solution. There are other STI’s other than HIV, many that can be prevented by a condom. But also, sex on a porn set isn’t like sex in most people’s bedrooms, where things can go on for hours and there’s a lot more friction. Here I will have to defer to others who say that safe-sex protocols on set need to be handled differently than in the bedroom.
Regardless, condom use should not be mandated by legislation that can only be changed by voters. The proper protocol is to let appropriate health and safety professionals develop regulatory standards that can evolve and be modified as needed when things change without having to go back to the voters.
And I suspect Michael Weinstein of the AIDS Healthcare Foundation knows that. I suspect he didn’t want to allow Cal/OSHA or others to develop protocols based on science because he’s demonstrated a strong hostility to PrEP, calling it a “party drug,” filing complaints with the FDA against its manufacturer, Gilead, and waging a disinformation campaign against it. So while I don’t know whether PrEP is part of the solution, it looks like Michael Weinstein has an agenda and he wants voters to enshrine a specific protocol in law quickly before regulators have a chance to weigh in.
Prop. 60 will lead to numerous lawsuits, many over harassment rather than genuine concerns over performer safety.
Prop. 60 allows anyone in the state of California – tens of millions of residents – to sue porn producers and distributors if they suspect condoms weren’t used or other health and safety standards weren’t met. And it won’t just be the AHF and Michael Weinstein suing. Every person and organization with an anti-porn agenda will sue whether or not they have a basis for doing so hoping to drive the porn industry out of business. Stalkers will sue just to try to get the home addresses of their victims.
It won’t drive porn producers out of business, of course – maybe a few individual companies who can’t afford to defend themselves, right or wrong, but not the entire industry. But it will be a bonanza for the trial lawyers, and at the taxpayers’ expense.
Prop. 60 would violate worker privacy, including potentially making the real names and home addresses of porn performers public.
Prop 60. allows for lawsuits against porn producers and anyone with a “financial interest” in the film. But increasingly, many porn performers are co-producers or receive compensation packages beyond a simple paycheck that would legally define them as having a “financial interest,” such as reselling clips, getting bonuses based on sales or traffic, and other incentives that would allow a litigious individual to claim that they are more than a mere employee or contractor. And because of that, these lawsuits would make these porn performers – already at much higher risk of stalkers – have to publicly disclose their real names and home addresses as part of the legal public record.
Most porn performers oppose it, including the only organization in the state solely representing porn performers.
Most of the largest, long-standing organizations representing adult film performers have come out against it, such as the Adult Performer Advocacy Committee (APAC), which is the largest organization of dues-paying porn performers, and the St. James Infirmary, which provides health care services for porn performers and sex workers.
Now, I understand that just because some individual workers oppose certain industry regulations doesn’t mean that all workers should have to waive their rights. Workplace protections should not be something that workers can waive because with the power imbalance between employers and employees, it’s far too easy for workers to be forced to accept unsafe conditions. If employers could make employees waive their right to minimum wage laws by signing an employment agreement, it would make minimum wage laws meaningless since the most vulnerable would have no choice to sign. Mine workers should not be able to waive mine safety regulations by signing an employment contract, not when most of their town – or their part of their state – is employed by the mines and too many have few other options.
That said, we should at least listen to workers when they tell us what is and is not working, and what their concerns are. Michael Weinstein and the AHF are purporting to represent porn performers, but the overwhelming majority of performers disagree and are very concerned about their privacy and safety if Prop. 60 should pass.
If the Attorney General declines to defend the initiative in court, Michael Weinstein will be automatically paid by the taxpayers to defend it.
No doubt remembering how Prop. 8 proponents were not granted standing to defending their attempt to ban same-sex marriages in California since it didn’t directly affect their heterosexual marriages, the AHF wrote in language into Prop. 60 to allow them to defend their initiative if they had to. Fair enough. But rather than simply granting Michael Weinstein legal standing to defend it, the initiative actually goes so far as to have Weinstein be sworn in as a government employee who is specifically defined as not “at will” and who cannot be fired except by a majority vote of each house of the California Legislature. In addition, even the Legislature cannot fire him except for “good cause” as defined in another section of the California code not provided in the initiative.
Attorneys general, city attorneys, and the like have to make decisions all of the time about whether to defend city and state laws in court, and about the cost-effectiveness of appeals. Some of these decisions are political, of course, but some are also based on weighing the likelihood of winning and the cost to the taxpayers, particular in the event of losing when the State may be forced to pay the plaintiff’s attorneys’ fees. It would be one thing if this initiative granted Weinstein standing and then let him weigh the likelihood of success against the AHF’s budget. But this initiative bypasses that by letting Michael Weinstein, an unelected and essentially unfireable government employee, make that decision using taxpayer money without any accountability to the voters.
The AHF tries to mitigate potential voter discomfort with this by including a provision saying that the AHF will pay a $10,000 fine to the state if any part of the initiative is struck down in court. But that’s a minuscule fraction of the actual cost of defending an initiative in court. The ACLU of Kentucky is now seeking over $233,000 in attorneys’ fees over their suit to force Rowan County Clerk Kim Davis to issue marriage licenses to same-sex couples in Kentucky. That’s more than twenty times the fine that the AHF would pay, and that was a case that was resolved relatively quickly and didn’t involve trials before the Supreme Court.
The initiative would cost taxpayers millions.
The independent Legislative Analyst estimates that Prop. 60 would cost over $1 million a year to implement, and would also result in likely annual tax revenue losses that are impossible to properly estimate. That’s on top of potentially millions from court fees in defending this badly-written initiative – including paying Michael Weinstein and his attorneys if the Attorney General declines to defend this badly-written 13-page law in court.
It would be one thing if those millions actually accomplished something. But they won’t save the lives they purport to. It’s money wasted.
Prop. 60 has drawn broad opposition from a wide range of organizations and most media outlets.
Prop. 60 is so bad, it’s the only state initiative on the November ballot to be opposed by both the California Democratic Party and the California Republican Party. It’s also opposed by the California Liberian Party, at least 18 local party County Central Committees, and so many other healthcare and other organizations that the opposition to Prop. 60 deserves its own section.
Opposition to Prop. 60
Proponents claim that their initiative is only opposed by “greedy porn producers” who want to “put adult film performers’ safety and health at risk by forcing them to perform without condoms.” But the truth is, the initiative is opposed by the statewide Democratic, Republican, and Libertarian Parties – the only initiative this cycle to be opposed by both the Democratic and Republican Parties. And while the California Green Party didn’t take a position, the San Francisco Greens oppose it.
Prop. 60 is also opposed by a dozen local Democratic County Central Committees and half a dozen local Republican Country Central Committees. To date, 22 Democratic-affiliated local organizations oppose it, including Democratic Women of the Desert, the Robert F. Kennedy Democratic Club, and both of San Francisco’s LGBT Democratic Clubs, the Alice B. Toklas and the Harvey Milk Democratic Clubs. It’s opposed by numerous health and medical organizations, including the AIDS Project Los Angeles, the San Francisco AIDS Foundation, the San Francisco Medical Society, and the Wall Las Memorias Project. At least ten newspapers have come out against it while I could find only one (the conservative-leaning1 Bakersfield Californian) that supports it. Media outlets opposing it include the Bay Area Reporter, East Bay Times, The Huffington Post, Los Angeles Times, The Mercury News, The Press Democrat, The Sacramento Bee, San Diego Union-Tribune, San Francisco Chronicle, and Ventura County Star. (A more comprehensive but ever-growing list of opponents appears at the end of this diary.)
In addition, most of the largest, long-standing organizations representing adult film performers have also come out against it, such as the Adult Performer Advocacy Committee (APAC) and the St. James Infirmary.
The Yes on Prop. 60 website only lists a handful of supporters in addition to the AHF. Most are HIV and medical organizations like the California State Association of Occupational Health Nurses. Their motivations are no doubt honorable, driven by decades of messages that condoms save lives. (Ballotpedia notes that the Yes website disingenuously listed many endorsers who in general support condom use in porn but had not taken a position on Prop. 60 itself. Those organizations have now been removed from the site.)
I trust in the good intentions of their allies, but Michael Weinstein’s are much less clear. In addition to his ongoing crusade against PrEP, including running paid editorials against it and running a retrograde ad campaign that stigmatized people with HIV, which makes one wonder if he has a financial stake against PrEP, he’s used AHF funds for other off-mission activities as well. Most recently, he used AHF donations to fight a Los Angeles ballot initiative involving the development of a pair of high rise buildings next to AHF’s offices for reasons that have nothing to do with HIV treatment and prevention that people like Dana Cuff, a professor of architecture/urban design and urban planning at the Luskin School of Public Affairs at the University of California, Los Angeles, have argued that it was a misuse of the AHF’s donors’ funds. Regardless of your own personal stance on that initiative, it does seem strange for the AHF to spend donor money on fighting it. One wonders whether Weinstein was motivated by more by his office view than anything else. Weinstein and the AHF have been accused of numerous other shady practices, including over-billing Los Angeles County $5.2 million for patient treatment and then using the power of his organization to attack critics like then LA County Supervisor Zav Yaroslavsky in order to avoid accountability. They’ve fought unionizing activities and used their financial clout to intimidate and bully smaller organizations, like when they decided to simply stop paying rent for their thrift shop space in San Francisco that they were subletting from Maitri, a much smaller and poorer nonprofit. They are facing ten counts of defrauding the government in a whistleblower lawsuit filed by former employees who charge that the AHF is involved in for-profit kickback schemes. In response, the AHF tried to retaliate against one of the whistleblowers by withdrawing funding for a Louisiana HIV event when they discovered that one of the whistleblowers was one of the organizers of the event.
So while I trust the intentions of the California State Association of Occupational Health Nurses and other supporters, I am less confident about the intentions of Michael Weinstein and the AIDS Healthcare Foundation.
But regardless of intentions, it’s simply badly written and will have a bad effect, well-intentioned or not. And almost every media outlet so far agrees.
What the Media is Saying About Prop 60
Los Angeles Daily News — “If the 2012 L.A. County measure was an unwise intrusion on the practices of a legal industry, this Nov. 8 proposition may be worse. It poses financial and health risks to the very people it’s meant to protect from sexually transmitted diseases…. The law could be exploited by people trying to damage a controversial business or earn a cut of a resulting fine.”
East Bay Times — “State and federal laws already protect adult performers, who are routinely tested for sexually transmitted diseases. There’s insufficient enforcement. But this measure could undermine ongoing efforts by (Cal-OSHA) to improve regulation of the industry.”
Dan Savage, Savage Love — “If you’re a reader who lives in California, please vote no on 60. If you’re a reader who doesn’t live in California, please encourage your friends and relatives living in California to vote no on 60. And if you’re an editor at the SF Chronicle, please retire the term ‘porn-addled stalkers.’”
Casey Calvert, The Huffington Post — “If Prop 60 passes, my [stalker] suddenly has the means to acquire all of my personal information, including my home address, and meet me in court…. The business these days is such that one cannot make a living solely relying on scenes shot by the big companies. We are all business people. We are all producers. As a result, any person residing in California can sue me, sue any of us, for not using a condom. Stalkers, ultra-fans, anti-porn zealots, all of them. And there’s nothing in place to prevent them from filing complaints against content that was created before the act passed.”
Los Angeles Times — “Proposition 60 is far worse than Measure B not just because of its unusual provision allowing any Californian to sue and collect damages without having to show that they suffered any harm. It also extends the financial liability to, potentially, small-time performers who produce and distribute their own content (and who are unlikely to have been coerced into not wearing condoms). There’s also the possibility that some people might use the new law to harass adult-film performers. There’s also a concern this liability would extend to hotels, cable television and other private companies that provide adult films to customers.”
The Mercury News — “Prop. 60 is the brainchild of Michael Weinstein, CEO of the Los Angeles-based AIDS Healthcare Foundation. He’s often described as uncompromising and dictatorial, and let’s just say he brought both those qualities to Prop. 60.”
The Press Democrat — “Proposition 60 is pitched as a “safe sex” law, but it’s not. There has not been a single transmission of HIV on a regulated adult set in the state since 2004…. As in most moral campaigns, scare tactics and dubious numbers are used as a pretext to violate constitutionally enshrined rights. In this case, Weinstein wants to be a taxpayer funded porn czar, with the power to override both the state attorney general and Cal/OSHA.”
The Sacramento Bee — “Unfortunately, this initiative is a bit like its Los Angeles-based proponent, activist Michael Weinstein of the AIDS Healthcare Foundation – well-meaning, but so litigious that even sympathizers are unsettled. Most mainstream AIDS organizations and both major political parties in California oppose it. So must we.”
The San Diego Union-Tribune — “Perhaps Proposition 60 would be defensible if California had a pornography-linked public health crisis. But Weinstein simply hasn’t made the case that the failure to strongly enforce the 1992 law has led to significant health problems. Especially since a 2004 cluster of HIV cases traced to adult film sets in Los Angeles, Cal/OSHA has done a better job of responding to legitimate complaints about unsafe practices, and the Sacramento Bee reports that regulators are now working with the adult film industry and activists ‘to formulate comprehensive, updated safety regulations.’”
San Francisco Chronicle — “Initiatives aren’t always the best way to effectuate change. Measures such as Prop. 60 lock in requirements that can only be changed by yet another statewide vote…. But workplace safety is better done by regulation and statutes worked out after hearings and study, and can be adapted to address problems as well as best practices that emerge. That’s the way other industry standards are reached. In this case, the eventual rules need the input of performers who are willing to consider options other than a condom law.”
Ventura County Star — “Prop. 60 also would allow private citizens to file civil suits to enforce the law and reap a portion of any fines levied. That kind of vigilantism is a bad idea…. This proposal is overly broad and creates bad law under the guise of doing good.”
List of Opponents to Prop. 60
State Political Parties: California Democratic Party; California Republican Party; California Libertarian Party
Local Democratic Party Branches: Butte County Democratic Party; Del Norte County Democratic Central Committee; Democratic Party of Sacramento County; Los Angeles County Democratic Party; Placer County Democratic Party; San Diego County Democratic Party; San Francisco Democratic Party; San Luis Obispo County Democratic Party; San Mateo County Democrats; Santa Clara Democratic Party; Sonoma County Democratic; Ventura County Democrats
Local Republican Party Branches: El Dorado County Republican Party; Fresno County Republican Party; Monterey County Republican Party; Republican Party Los Angeles County; Sacramento County Republican Party; San Diego Republican Party
Local Green Party Branches: San Francisco Green Party
Democratic Organizations: Alice B. Toklas LGBT Democratic Club (SF); Democratic Women of the Desert; District 8 Democrats (SF); East Area Progressive Democrats; East Area Progressive Democrats; East Bay Young Democrats; Fresno Stonewall Democrats; Harvey Milk LGBT Democratic Club (SF); Los Angeles County Young Democrats; Miracle Mile Democratic Club; Orange County Democratic Club; Pacific Palisades Democratic Club; Potrero Hill Democratic Club (SF); Robert F. Kennedy Democratic Club (SF); San Francisco Latino Democratic Club; San Francisco Young Democrats; San Mateo County Democrats; Santa Clara County Democratic Party; SD Democrats for Equality; The El Cerrito Democratic Club; West LA Democratic Club
Republican Organizations: California Republican Assembly; California Federation of Republican Women
LGBT Organizations*: Harvey Milk LGBT Democratic Club (SF); Alice B. Toklas LGBT Democratic Club (SF); Fresno Stonewall Democrats; Equality California; Transgender Law Center; Los Angeles LGBT Center; Bay Area Reporter
HIV & AIDS Organizations: AIDS Project Los Angeles; San Francisco AIDS Foundation; Health & Medical Organizations: San Francisco Medical Society; The Wall Las Memorias Project
Progressive Organizations: Courage Campaign; Friends Committee on National Legislation (Quakers); San Francisco for Democracy; San Francisco Women’s Political Committee;
Adult Film Models & Professional Organizations: Free Speech Coalition; Valley Industry & Commerce Association (VICA); Adult Performer Advocacy Committee (APAC); Espler Project, Inc.; St. James Infirmary; SWOP USA; Desiree Alliance; Woodhull Freedom Foundation
Other Organizations: Greater San Fernando Valley Chamber of Commerce; Center for Sex and Culture
Elected Officials: Calif. State Sen. Mark Leno (D-11); SF Supervisor Scott Wiener (D) Other Individuals: Dan Savage; Craig Huey
Newspapers: Bay Area Reporter; East Bay Times; The Huffington Post; Los Angeles Daily News; Los Angeles Times; The Mercury News; The Press Democrat; The Sacramento Bee; San Diego Union-Tribune; San Francisco Chronicle; Ventura County Star
* Some of the LGBT organizations are duplicated in other relevant categories.
That’s why I oppose Prop. 60
Progressive people of good intent can have an honest difference of opinion on complex issues, and this is one of them. But I care about the health and safety of porn performers, and they believe, as do I, that this will not protect their health as intended and will instead put them in danger. That’s why I genuinely believe that Prop. 60 is a bad idea. If porn sets aren’t currently regulated well enough, or if existing regulations aren’t enforced well enough, Cal/OSHA and the California Occupational Safety and Health Standards Board have the authority to change that. If you think they don’t have sufficient authority, change that. But this initiative is badly written, codifies safety protocols that should have the flexibility to be changeable by regulatory agencies when needed, not solely by the voters, and risks the privacy and safety of porn performers. I’m voting no on Prop. 60.
1 Note: In trying to assess the family-owned Bakersfield Californian’s ideology, their Wikipedia entry didn’t note whether or not they were conservative so I had to rely on their endorsement history to get a sense of it. Their endorsements on this year’s ballot measures are mixed: they’re supporting repealing the death penalty and keeping California’s ban on plastic bags, but oppose legalizing marijuana and the gun control restrictions. They endorsed the more conservative Loretta Sanchez over Kamala Harris for U.S. Senate. Both are Democrats, but Harris is considered to be more liberal and has been endorsed by most of the Democratic organizations while Sanchez has been trying to cautiously court Republican votes. And while the Bakersfield Californian made no endorsement this year for president in keeping with getting out of presidential endorsements with the 2012 elections, they endorsed McCain in 2008 and Bush in 2004. I judged that as “conservative leaning.”
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