Underripe Thoughts On Inevitable Litigation

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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20 Responses

  1. North says:

     Very interesting. An alternative thought on the last paragraphs of your post; the porn industry has been badly hammered by the flood of amateur and free (or near free) porn that the internet has unleashed. It is possible that rather than relocating what we could consider the porn industry may fragment, shatter and wither. The end of porn as we know it?Report

    • Chris in reply to North says:

      Probably not. The adult industry has… diversified, let’s say, with easier entry for amateurs and small timers, but the major companies are still making a ton of money, and fairly recession-proof money at that (if you want to make money in an economic downturn, sex is always a good investment), so it’s hard to imagine that the professional porn industry is in any danger. In fact, at the same time the internet has created more competition, it’s also made it easier and cheaper for the major players to promote and distribute their products, so it’s probably been a net positive for them. On top of that, the demand for adult products is pretty much unlimited, so while the amateurs are taking some money from the pros, for the most part they’re just allowing the industry to come a bit closer to meeting that unlimited demand.Report

    • Kolohe in reply to North says:

      Along the same lines, I’ve always thought the SoCal centric of the industry was basically ‘supply-side’ based.  (i.e. the stereotypical daily busloads of midwestern prom queens looking for movie stardom).  As Hollywood itself decentralizes (and moves overseas), I imagine that the supply/demand curves are going to be altered.

      Plus, the internet and overseas competition allows much more ‘niche’ performances to become profitable.  I can easily see the SoCal ‘vanilla’ industry going the way of Playboy.  (i.e. still there as the ‘standard’, and able to maintain itself out of sheer legacy, but not the money machine it once was)Report

  2. BSK says:

    I wonder if the condom industry is in favor of such a law.  Could be a major boost to sales.Report

  3. Nob Akimoto says:

    I know this is juvenile of me but I had to chuckle at:
    “That is not the sort of thing that can be addressed on a facial challenge to the law, so I’d look for the law to be implemented first before a court tackles such a question.”

    …I know, I know…Report

  4. RTod says:

    “but could the industry relocate and take the jobs and tax revenue associated with its activities elsewhere? Where would it go?”

    It’s hard to think that the answer to this question wouldn’t be Nevada.Report

  5. RTod says:

    Also – and I realize just how immature this is of me – can I just say how bizarre I somehow find the obvious fact that this is an actual industry with with representatives and lobbyists and such is?Report

  6. DensityDuck says:

    California just can’t figure out what it wants.  At the same time we’re banning plastic bags in the North, we’re making them compulsory in the South!Report

  7. Michael Cain says:

    Among other things, this is an opportunity to discuss the merits of citizen-initiative laws (and constitutional amendments).  If a member of the city council (or county commissioners or state legislature) had proposed that their body adopt such a law, any number of questions would be asked in an open-testimony sort of environment.  Who is being hurt?  How many are being hurt?  Are members of the public outside of the adult entertainment industry being hurt?  Will the legislation be effective at mitigating the harm?  Are there alternatives that would be more effective, less expensive, etc?  While these may be asked by the media, and purported answers given in campaign materials, the formal hearing, with sequences of probing questions asked by people from both sides, will not be held.

    A couple of multi-millionaires can almost always have the necessary signatures collected to get an initiative on the ballot.  Unless it’s truly crazy, they can fund an advertising campaign that gives the proposal at least a fighting chance of being passed.  We make it enormously more difficult for our elected officials to do things than for millionaires.

    With predictable results.  Colorado passed a constitutional amendment imposing strict limits on the gifts that public officials, state employees, and their families can legally accept.  Even the sponsors of the initiative admit that it was poorly written, and would have been substantially improved by going through some sort of hearing process where the issues were debated.  Instead, we have a situation where an independent ethics commission has to decide things on nearly a case-by-case basis.  The commission has generally followed the principle that things that were illegal before the amendment passed are still illegal, and things that were legal before are still legal.  Which leaves us with no gain, but at least the dead weight loss of funding a commission.  And a state Supreme Court that has given veiled hints that sometime down the road, they may take cases and decide if the law implementing the amendment and the commission’s decisions interpreting the law are valid or not.Report

    • In this case, we have both. The City Council went through quite a number of legislative gyrations and one piece of challenge litigation that I know of has already started, just to put the initiative on the ballot for the voter’s approval (which I presume will be forthcoming but acknowledge that I could be proven wrong).

      Another response from the industry that can reasonably be expected is something akin to what you’re talking about — the industry could write up its own counter-initiative, hire the circulators to gather signatures and put the matter on the ballot for the same election, and try to use the initiative process to overrule or water down the City Council’s initiative to be something more to their liking. As much as I presume the public would support the condom ordinance, I also presume the public could also be persuaded to support the “Artistic Freedom And Job Preservation Act Of 2012” or some other such initiative. Given some other sections of the ordinance that I did not reproduce in the OP, were such a thing to happen, the initiative getting the greater number of votes would prevail over the other should a conflict in enforcement arise.Report

  8. Rufus F. says:

    It’s interesting that there are only a few states where you can make porn. I didn’t know that, but I’ve wondered before why you can’t pay someone for sex unless it’s filmed. Is it considered something else when it’s on camera? And out of curiosity, how strictly enforced are the sex laws? We have a “massage parlor” down the street that’s always up and running, although they make little effort to hide that at least some sex acts go on there. Their website is nearly porn itself.Report

    • Tod Kelly in reply to Rufus F. says:

      “Is it considered something else when it’s on camera?”

      I had always assumed it had to do with the fact that all members performing a sexual act were being paid, and that neither was paying the other for sex.  But I could be way off.Report

  9. Will H. says:

    That water-based lubricant isn’t water-based. It’s glycol-based.
    Three types of synthetic oils: esters (explosive when pressurized in the presence of oxygen), glycols (tend to be water-soluble), and alkyl-benzenes (carcinogenic).
    Silicon poses different issues. Think caulk.

    Look, I’m OSHA-10 certified over here (not claiming to be able to make porn in a safe manner). Part of that training was blood-borne pathogens. Saliva carries blood-borne pathogens. If you want these “performers” to “act” safely, then no kissing is a strict must.
    As a result, I never kiss anyone on the job.

    I am told that the main source of AIDS infection in heterosexual males in through the nasal membranes, acquiring vaginal fluid while in close contact with the … well, “female parts,” let’s say.
    I suppose they could retrofit some earplugs with only a minor adaptation to provide the necessary personal protective equipment.

    And they might need some chemical-resistant gloves for finger-banging, after all that silicon leadening up the crotch vicinity.

    And don’t forget the safety glasses.
    Eye injuries are real common on such sites, I’m sure.
    Can’t ever tell when you’re going to get something in your eye.

    Hair nets.
    Plus hair nets for the crotch vicinity, on an as-needed basis.
    That’s darn near choked me a time or two.

    I think they could do without the steel toes.
    Have to have something chemical-resistant for slopping through all the blood-borne pathogens, mind you.
    Composite toes should be ok.
    Probably better around all the electrified equipment, anyway.
    And something with a gripper tread.
    God knows, I’ve had a foot slip on a hardwood floor before during un-simulated humping, and I’m well aware of what an injury that can cause.

    And knee pads, for crying out loud!
    Somebody get those people some knee pads!

    Respirator equipment available.
    Never can tell when there’s going to be a gas leak.
    Need air monitors.
    A hole watch with extraction equipment on hand, for entering any confined space.
    I believe all body orifices would qualify as a “confined space” as per OSHA standards.

    Man, that sure is one risky business.
    Not quite as risky as jumping motorcycles for a living, I’d say.
    But risky, nevertheless.Report

  10. wardsmith says:

    Could a condom-law-free Vancouver become the new Porn Capital of the World?

    You mean it’s not already?Report