Op-Ed: Civil Disobedience and the Adult Industry

LOS ANGELES—Wow! The geniuses at AIDS Healthcare Foundation (AHF) have figured out that the "Mark from Chatsworth" who called into KPCC's AirTalk last week and identified himself as a "journalist in the porn industry" who had been "covering it for the last 20 years" (25, actually; I misspoke) was in fact AVN Senior Editor and Chief Legal Analyst Mark Kernes—you know; the reporter who's been following AHF's shenanigans regarding the adult industry for the past six years or so, and has been a prominent attendee at several AHF functions and news conferences. AirTalk host Larry Mantle's call screener didn't ask me for my last name, which is why it wasn't broadcast—which is probably what led AHF's brain trust to be unsure which "Mark," who's been an adult industry journalist for 20 years, was speaking—about a subject that Mark Kernes has written about extensively ever since AHF decided it knew what was better for the adult industry than did the doctors, attorneys and adult entertainment professionals who work in and with the industry every day of the week. And though I am the Free Speech Board's secretary, it's strange that they should mention it in their PR since I never mentioned it on the air. "Guilt" by association? But leaving aside AHF's (and the organization's L.A. Weekly supporter, Dennis Romero's) disingenuousness regarding my identity, the main point of AHF's press release dated yesterday (and Romero's article, posted today) was its claim that "Porn Industry Admits It Breaks the Law on Condoms, Film & Health Permits." This is a situation that, in fact, AHF knew would happen from the moment it started petitioning Cal/OSHA to apply its hospital-based bloodborne pathogen restrictions to the adult movie-making community, through its demand that the city of Los Angeles pass an ordinance prohibiting film permits to any adult producer unless that producer promised to use condoms (and other barrier protections) in its movie-making. Then came AHF's creation and support for Measure B, which expanded those requirements to the entire Los Angeles County. And now it is pushing AHF president Michael Weinstein's 2016 ballot initiative, which would coincidentally appoint Weinstein to essentially lifetime tenure as California's "porn czar." See, ever since veteran performer Marc Wallice faked his blood test back in 1998 and caused several other adult performers to become infected with HIV, the adult industry has taken the issue of STDs very seriously, beginning with the incorporation, by industry veterans Bill Margold and Sharon Mitchell, of the Adult Industry Medical (AIM) Healthcare Foundation, which for nearly 15 years provided extensive testing to the adult performer population and others, and did a pretty damned good job of it—until a bullshit lawsuit filed by AHF's then-chief counsel Brian Chase on behalf of "aggrieved" former actresses Desi and Elli Foxx helped drive AIM into bankruptcy and left the industry scrambling to replace it, which it successfully has. The point is, outbreaks of STDs in the adult performer pool are few and far between—and there hasn't been an on-set HIV transmission in "Porn Valley" in over a decade, so the industry's testing program, coupled with its PASS database, are doing a pretty damned good job of keeping performers healthy. Couple that with the fact that most performers don't want to be forced to use condoms and other mandated "barrier protections" (latex gloves for orifice penetration, dental dams for cunnilingus, goggles for blowjobs and face shields for cumshots), plus the fact that consumers generally don't want to see such devices in adult content (most claim it "ruins the fantasy"), and L.A.-based adult producers are caught, if one will pardon the religious reference, between a rock and a hard place: Either they shoot adult content using all of the prescribed barriers described above and get driven out of business through lack of sales—content shot outside of California has no such required restrictions—or they commit acts of civil disobedience and shoot "underground" without first obtaining filming or so-called "health" permits, even though the chances of catching an STD on a porn set are substantially less than catching one by picking up a sex partner in a local bar. It might be good at this point to note that in their press release, AHF took one of my statements out of context. According to that press release, "Kernes wrote about the industry’s willful disregard for film and public health permits: '…they're (producers) … lying on their health permit application or simply not getting a filming permit. Most have chosen the latter course, possibly because lying on an official government document can be worth up to a couple of years in prison.'" [Italics in original] What I actually wrote was, "nowadays, one can't get a filming permit without the 'health permit' created by Measure B, and because adult producers don't want to be put in the position of swearing to something—condom use—that they don't expect to put into practice, they're forced into the unenviable position of either lying on their health permit application or simply not getting a filming permit. Most have chosen the latter course, possibly because lying on an official government document can be worth up to a couple of years in prison." So by omitting several words, AHF creates the impression that adult producers are lying on their permit applications, where in fact there is no evidence that they have done so, and in fact have taken steps to avoid doing so—steps that may properly be described as "civil disobedience." Fact is, civil disobedience has a long history in this country. African Americans began "sit-ins" to gain their civil rights as early as 1939, though the protests at a Woolworth department store lunch counter in Greensboro, North Carolina, in the early '60s are perhaps the best known examples. And then there's Rosa Parks, one of the first black women to sit on the governing board of Planned Parenthood, who got on a city bus in Montgomery, Alabama, in 1955 and refused to move to the back of that bus to make room for white passengers—and who's currently favored to replace (or at least share space with) Alexander Hamilton on the United States ten dollar bill. Anybody here remember ACT UP? They're not in the news much now, and in fact, their organization was always fairly anarchic since its beginnings in 1987, but for several years, these gay rights activists held protests in major cities around the country, seeking the same rights for gays as those enjoyed by the straight community. It's a direct line from those demonstrations to the recent recognition by the U.S. Supreme Court of gay people's right to marry. And how about the Stonewall Inn, the only New York City bar in the '60s which allowed gays to dance with each other, which was the site of violent demonstrations against frequent police raids in 1969—and which structure was just deemed to be an official landmark by the city's Landmark Preservation Commission in memory of those demonstrations? Just about everyone in the adult industry knows that Measure B is a bad law—as does even Los Angeles County itself, which refused to defend the law in court when Vivid Entertainment and two performers, Kayden Kross and Logan Pierce, sued to overturn it. That case is still in motion, though, thanks to presiding Judge Dean D. Pregerson having allowed AHF to intervene in the case on behalf of the law it spent hundreds of thousands of dollars to get passed. Of course, by continuing to push the case forward, AHF is violating not only its own charter and IRS rules regarding non-profit corporations, it's also going against the U.S. Supreme Court's decision in Hollingsworth v. Perry, which ruling made it crystal clear that AHF has no standing in the Measure B case whatsoever. Therefore, if AHF were removed from the case, as it properly should be, the only arguments the district court would hear are the very cogent ones being made by the plaintiffs, including the fact that forcing adult performers to use barrier protections distorts the erotic message of the adult content, a clear First Amendment violation which must be considered under the doctrine of strict scrutiny, as the Supreme Court recently indicated in the case of Reed v. Town of Gilbert, which also bears on the industry's appeal of Judge Michael Baylson's ruling in the 2257 lawsuit. The AHF PR also claims that the adult industry will not leave the Los Angeles area, thereby implying that it should just shut up and kowtow to AHF's demands regarding condoms and other barrier protections. It bases this claim on the fact that during the Mantle show, I noted that although some adult companies have already relocated to Las Vegas, many don't consider that option preferable, in large part because the weather in the Los Angeles area is generally better than the weather in Vegas year-around, and because California is one of the few places where filming hardcore content is protected by, in this case, a decision of the California Supreme Court. What AHF leaves out is that, if Measure B is enforced and/or Weinstein's ballot initiative is passed, the adult industry will be forced to leave California—and contrary to the implication AHF draws from my words to Mantle, the industry has plenty of choices of where to relocate. See, just because only California and New Hampshire courts have officially recognized a person's/company's free speech right to shoot hardcore content in their jurisdictions, the fact is that it is currently legal for adult content to be shot in any state of the union, as no state has yet passed a law outlawing such production—and if one attempted to do so, that law would be shot down just as California's prostitution/pandering law, under which producer Hal Freeman was charged, was found to be inapplicable to adult production. And finally, as long as we're discussing breaking the law, let's consider that outlaw organization known as AIDS Healthcare Foundation. For one thing, L.A. County seems pretty well convinced that there have been some major irregularities in how AHF was billing the county for its services, to the point where the county declined to issue any further contracts to the organization—at which point AHF filed a lawsuit charging retaliatory discrimination. And let's not forget the lawsuit filed in Florida by three former AHF managers, charging that AHF paid potential patients as well as its own employees what amounted to bribes to bring people into AHF facilities for STD testing, and if found to be positive, bribes to managers and patients to use AHF facilities for treatment of their condition, as part of a scheme to obtain more federal grant money in violation of federal anti-kickback statutes. And then, of course, there's AHF's violations of the Internal Revenue Service's rules regarding political activity by non-profit 501(c)(3) organizations, which AHF claims to be. According to an investigation by employees of Free Speech Coalition using publicly available documents, AHF has spent at least $7 million over the past four years on political activities, and in at least two of those years, the organization exceeded the $1 million political spending cap—including 2015, which still has roughly three more months to run. "It also appears that AHF’s tax documents under-report more than $1 million dollars to state and federal authorities," said Free Speech Board Chair Jeffrey Douglas, an attorney. "According to the documents we found, AHF has spent nearly $7 million on political activities, which is above the $6 million threshold that triggers the revocation of non-profit, tax-exempt status." So perhaps AIDS Healthcare Foundation ought to consider putting its own house in order before tarnishing the good reputation of the adult entertainment industry, whose response to the unconstitutional laws that AHF has managed to get passed has been, in part, the time-honored practice of civil disobedience.