We’ve heard some weird political arguments this year. The strangest of them is raging in California, where else? There the hotly contested question revolves around an electoral initiative known as Proposition 60.
Prop 60 is a ballot baby that only Californians could conceive. The state’s system of citizen-sponsored ballot initiatives, dating back to 1911, was one of those progressive schemes that managed to produce the opposite outcome from the one intended: In hopes of returning power to the people and making state government more responsive and efficient, the initiative system has managed to empower wealthy special interests, baffle the average citizen, and render the state government a sclerotic, half-paralyzed Leviathan, at once despotic and feckless. So of course Prop 60 seeks to make the government more powerful.
The oddest question it raises, however, is this: Should a guy watching a porn movie be allowed to sue the producers if the people in the movie aren’t wearing condoms? As Yul Brynner said in The King and I: “Is a puzzlement.”
There’s more to Prop 60, all with the ostensible goal of “worker safety”—that is, stopping the spread of HIV. If it passes, it will require all makers of pornographic movies to register with the state health department and post a health license wherever they ply their trade. They must pay for regular health screening of their employees for sexually transmitted diseases and require them to wear condoms whenever they are engaged in intercourse. (Which, during working hours, is pretty much all the time—once they’re done with that, it’s yabba-dabba-doo.) State regulators will be able to pop onto a photo shoot whenever they want to make sure that everybody’s adequately regulated and in compliance.
The backers of Prop 60 worry that state regulators will lie down on the job. They have reason to worry. California law already makes it illegal for employers to expose their employees to pathogens borne by one bodily fluid or another. In 2012, voters in Los Angeles passed an ordinance, Measure B, requiring everybody appearing in a porn movie to use a condom or some similarly protective device. Yet nobody, pro or con, claims that either rule has been enforced.
This is why Prop 60 allows private citizens to end-run the regulators and take matters into their own hands. Any viewer of a porn movie who gets offended by a lack of prophylaxis will be able to file a claim with the state. If the state agencies fail to take action, the blushing customer can sue the movie’s producers, or indeed anyone with a financial stake in the movie, and force a cash penalty that will be split 75-25 between the state and the plaintiff.
A vast array of interests is united against Prop 60, including both state political parties, the editorial boards of every major newspaper, the medical establishment, and a host of trade groups. The most prominent of them is the Free Speech Coalition, the “Trade Association for the Pleasure Products and Adult Entertainment Industry.” (Think of BP sponsoring a Committee for Cleaner Beaches.) Reading about Prop 60 it’s easy to get lost in a forest of dubious euphemisms like this. “Adult Entertainment,” for example, is a genteelism for “dirty movie” or “porn,” and its use is particularly ironic given pornography’s mission, which is to affirm an adolescent fantasy that should be less appealing (and plausible) as a person becomes an adult. “Pleasure Products” refers to dildos and other toys, some of which—horrifying to contemplate—are edible. The prostitutes who are paid to have sex for the pleasure of the viewer are called “workers” or “sex workers.” The pimps who hire them are called “filmmakers.” As for the rented houses and apartments where the sex is typically filmed—or, just as often these days, streamed live over the web—these constitute a “workplace.” Like a steel mill.
The arguments of “the adult entertainment industry” read like a parody of a chamber of commerce brochure on the evils of regulation. Prop 60, says the literature, is a solution in search of a problem: Industry records show that no cases of HIV have been contracted on a porn movie set—in an industry workplace, I mean—since 2004. Prop 60 also will encourage litigation in a state already choking with frivolous lawsuits from trial lawyers. And it will subject the infinite variety of businesses within the industry to a (this is their term, not mine!) “one size fits all solution.”
Newspaper editorial writers are especially wary of the possible economic consequences of Prop 60, which, they say, could force the industry to pack up its sex toys and move to another state; Nevada and Florida are mentioned most often. The industry generates a large but unknown amount of tax revenue—easily in the tens of millions of dollars—for California state and local governments. As many as 33,000 jobs, the critics argue, could be “impacted” if the pimps decide to go elsewhere.
And then there are, pardon me again, the perverse effects that typically follow regulation, no matter how well meaning. A rule designed to protect workers will in practice make workers less safe, by driving what remains of the industry underground, beyond the reach of even the slackest government monitoring. And besides, says the adult entertainment industry, the adult entertainment industry is already a conscientious member of the business community, doing an excellent job of policing itself. Industry protocols suggest that workers get tested for venereal disease every 14 days. Silicon Valley should be so safe.
What the pornographers fear most of all, however, is the empowerment of a single man. Michael Weinstein is founder and president of the AIDS Healthcare Foundation, one of the largest such organizations in the world. He seems to be the sole motive force behind Prop 60, as he was behind Measure B. Indeed, it was the failure of the Los Angeles County health cops to enforce the earlier condom regulation that inspired him to draft this statewide initiative. Spokesmen for the main pro-60 organization declined to comment, but according to published reports Weinstein has already spent $4 million promoting Prop 60.
In the early days of the AIDS epidemic, as one of the first to sound the alarm and agitate for urgent medical research, Weinstein was crowned a hero. Today, says Mike Stabile of the Free Speech Coalition, “he is widely despised in the community.” Another member of the community told me why: He is “condom-obsessed.” In the industry, condoms form the fault line of a roaring controversy. Most workers and producers believe that pharmacology has rendered condoms obsolete. New drugs like Truvada are heralded not only as antidotes to AIDS but also as preventatives—a regular dose, goes the theory, will reduce the chance of contracting HIV to nearly zero. Adamantly pro-condom, Weinstein is increasingly isolated on his side of this argument.
Thus Weinstein, in the inverted world of contemporary smut, stands as a traditionalist.
“He has a more conservative outlook,” Stabile says. “I think he has issues with porn in general. In the end, for him, this is not about worker safety, it’s about getting condoms in the films.”
Stabile is almost certainly correct. Writing in the Huffington Post a few years ago, Weinstein extolled the “ ’educational’ aspect of porn.” He worried about “the effect that the films themselves have on public health. The fact that most straight porn is made without condoms sends a horrible message that the only kind of sex that is hot is unsafe.”
This is the nub of the argument over Prop 60. Its detractors worry about economics, jobs, regulation, consumer preference. Its supporters meanwhile believe that only when the industry is festooned in condoms will pornography, at long last, achieve its enormous potential as a force for social betterment.
Is California the only place in the country where such an argument could be made with a straight face? Probably. For now.
Andrew Ferguson is a senior editor at The Weekly Standard.
