According to AVN’s Mark Kernes in Judge Denies Motions for Summary Judgment in 2257 Case:
In a move that reportedly came as a complete surprise to attorneys for the Free Speech Coalition and other plaintiffs in the lawsuit against the federal recordkeeping and labeling law, 18 U.S.C. §2257, as well as those for the defendant, U.S. Attorney General Eric Holder, Judge Michael Baylson today sent a letter to counsel stating that he would deny the Motions for Summary Judgment that each side had filed in the case last Friday.
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At issue at the trial will be whether the 2257 law is unconstitutionally overbroad, in that it includes sexually explicit videos and web fare of persons who are unquestionably adults and would never be mistaken for minors, and also encompasses far more material than just that produced by the adult entertainment industry. Some of the imagery covered by 2257 and its companion 2257A include sexually explicit photos sent via cellphone (“sexting”); home videos made by husbands and wives, or girlfriends and boyfriends, which are meant to be used either for their own private pleasure, or to be traded with other like-minded couples; websites that allow couples or singles to stream sexual activities for the enjoyment of other remote viewers; photos and videos that appear on social networking sites; privately-commissioned sexy photographic portraits; internet webcasts of the yearly Masturbat-a-thons; documentaries of adult performers or others whose stories involve explicit sexual activities; and many more. All of the above are technically covered under 2257 or 2257A, thus requiring recordkeeping of the participants and labels affixed to the end products identifying who keeps those records and where, but at this point, the laws have only been applied to adult video producers and webmasters.
The hope, of course, is that this burdensome law will be done away with altogether. The article talks about Fourth Amendment issues; agents showing up to conduct inspections without a warrant, etc. This has been a highly problematic law for years now.
In AHF: Forcing People to Wear ‘Barriers’ Doesn’t Affect Speech, Kernes addresses a statement by AHF he says is misleading.
Apparently, AIDS Healthcare Foundation (AHF) is hoping that Judge Dean D. Pregerson hasn’t actually read Los Angeles County’s Measure B in its entirety, because nothing else would explain the argument which forms the basis of their Brief in Opposition to the Preliminary Injunction against the measure’s enforcement which is being sought by the Plaintiffs in the Vivid Entertainment lawsuit.
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But as any researcher can tell you, relying on a summary of the contents of an article—or in this case, a proposed law—is a bad idea, because that summary may leave out important parts of the full contents of, in this case, Measure B, the text of which was adopted as law by voters and can be found here.
For instance, while the summary states, “The measure would require use of condoms for all acts of anal or vaginal sex during the production of adult films, as well as the posting of the public health permit and notice to performers regarding condom use,” one has to read Section 11.39.110(A) of the law to find out how misleading that statement is.
He goes on to point out that the law references section 5193 of Title 8 of the California Code of Regulations.
As AVN has previously noted, California Code of Regulations Title 8, section 5193 requires not only the use of condoms in situations where a person (such as an adult performer) may be exposed to blood or “other potentially infectious materials” (OPIM), but also what’s called “personal protective equipment.” And what is that “personal protective equipment”? Well, the operative portion of Section 5193 says, “Where occupational exposure remains after institution of engineering and work practice controls, the employer shall provide, at no cost to the employee, appropriate personal protective equipment such as, but not limited to, gloves, gowns, laboratory coats, face shields or masks and eye protection, and mouthpieces, resuscitation bags, pocket masks, or other ventilation devices. Personal protective equipment will be considered ‘appropriate’ only if it does not permit blood or OPIM to pass through to or reach the employee’s work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous membranes under normal conditions of use and for the duration of time which the protective equipment will be used.” [Emphasis added}]
That’s what AHF’s “summary” of Measure B leaves out—and obviously, it’s a biggie.
I don’t want to copy and paste the entire article, but it’s worth also noting that further down Kernes highlights the statement made by AHF:
“In this case, Plaintiffs attempt to improperly conflate the process of making a film with the actual contents of a film, in order to claim that a law designed to protect the public health by preventing disease transmission at a workplace is actually an impermissible content-based regulation of speech. They make this claim despite the facts that (1) the law at issue makes no reference to the content of any film, nor regulates what films may be shown in Los Angeles County, and (2) Plaintiffs state that the most objectionable (to them) feature of the law—requiring utilization of prophylactic protection when engaging in certain sexual acts during the making of films—is already required under California State law.” [Emphasis in original]
So, here we are again with AHF pressing the issue that adult production is bound by regulations created for health clinics in the early 1990s. And they are not anti-porn? Someone please explain to me how that could possibly be.
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