Election Endorsements

Prop. 60: How hardcore do we want to get in policing porn?

Proposition 60 would use litigation to force the adult film industry to use condoms on porn sets.
Proposition 60 would use litigation to force the adult film industry to use condoms on porn sets. Associated Press file

For as long as X-rated entertainment has existed, it has exploited the vulnerable and troubled. So we sympathize with the intentions behind Proposition 60, which would crack down on unsafe sex in the production of pornography.

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.

Weinstein does raise worthwhile issues. Producers, not performers, should bear the cost of tests for sexually transmitted infections. And condom use is not too much to ask from an industry that routinely exposes its workers to sexually transmitted diseases, some of which can kill them. That’s why rules mandating protection against blood-borne pathogens on adult film sets have been in effect here since 1992.

The California Division of Occupational Safety and Health is tasked with enforcement. But California’s porn industry is so fragmented and furtive that policing it increasingly has been a goose chase, demanding an outsized commitment from staff members who must watch over many risk-prone lines of work.

Proposition 60 arises from understandable frustration with that situation; its solution is essentially to litigate the adult film industry into compliance with condom rules. If voters were to approve the measure, and Cal/OSHA declined to pursue a reported violation within 21 days, the complainant could file a civil suit against anyone with a financial stake in the production and take a cut of the proceeds. It’s an interesting idea, but surely we aren’t so far gone that we want to start offering bounties and inviting frivolous lawsuits.

Proposition 60 wants to litigate the porn industry into complying with public health laws. We share its frustration, but its fine print raises red flags and invites frivolous lawsuits.

If the industry were huge, willfully ignored by authorities, or the source of a widespread and urgent public health risk, we might condone desperate measures. Lawsuits can be useful when regulation fails. But the best estimates put the California porn workforce at only around 2,000 people, who increasingly work not at studios but for themselves, posting their products on websites. Though enforcement isn’t what it should be, since 2004, Cal/OSHA has hit porn producers with more than 145 violations; in March, acting on a complaint from AHF, the production company of porn star James Deen was fined $77,875 for failing to use condoms, among other things.

Regulators are working with the industry and AHF to formulate comprehensive, updated safety regulations. This is beyond overdue, and they need to get busy. Producers and distributors, not performers, also should pay for more meaningful STD testing, as the measure suggests.

But an all-out war, in the courts and by the state, on an industry that already operates at the fringe could just drive performers further underground and make them less safe. And public health-wise, porn isn’t a major driver of HIV/AIDS here. HIV/AIDS has been spread on porn sets, but documented cases are sporadic, and new cases in general in California have been declining for 15 years.

Proposition 60 raises red flags with another provision. In its fine print is language AHF says it needs if the initiative wins and is challenged but the state fails to uphold the voters’ will and defend it in court. In such a case, Weinstein would be sworn in as a state employee with standing to defend the initiative himself, and he couldn’t be fired without a majority vote of both legislative houses. Oh, and the taxpayers would be on the hook for his legal expenses.

All workers should be protected, but that’s why we elect an attorney general and pay Cal/OSHA. Other proponents don’t write state jobs for themselves into their measures. We share Weinstein’s frustration, but Proposition 60 is a legal overreach and too hardcore.

Note: An earlier version misstated the frequency of documented HIV/AIDS transmissions on adult film sets.