The Prop 60 Debrief on Thursday, November 3rd featured attorneys Alex Austin (Austin Law Group) and Karen Tynan, per Verta (Secretary of the Adult Performer Advocacy Committee), with moderation by Jiz Lee. Thank you to Dr. Carol Queen, Shine Louise Houston, Matt Mason, and the events co-sponsors the Center for Sex and Culture and Good Vibrations.
Here the video from Periscope. Another version of the video is available via the STOP 60 Facebook page livefeed. See below for the transcript. (Closed Captions on the video itself are in progress.)
Transcription (Work-in-Progress, thank you to volunteers)
SHINE LOUISE HOUSTON: Alright, should be good.
JIZ LEE: You’ve got Facebook live going?
MATT MASON (Off screen): Almost, it said follow up.
SHINE LOUISE HOUSTON (Off screen): Mine is live
JIZ LEE: We have this, and then the two recording ones, so yeah.
JIZ LEE: Great
JIZ LEE: So that signup sheet, we’ll send a follow up email after this that will have
not only access to the videos that we’re recording right now. so, we’ll be able to go back for quotes and things like that. Um, ideally even a transcript of them. Um, but we’ll also have information like the contact um, contacts for the free speech coalition, or the adult performer advocacy committee for actions that we are planning in the remaining days until the election.
JIZ LEE: Alright, are we good to go?
MATT MASON (Off screen): Almost, says it’s not strong in here?
DR. CAROL QUEEN (Off screen): And there’s beverages and stuff back here if anyone chooses to partake.
GROUP: Thank you!
DR. CAROL QUEEN (Off screen): Thank you, thank you so much for being here! If anyone has never been to the center before, and doesn’t know the restrooms are in line they are here.
JIZ LEE: The washrooms are located that way to the left. They are gender natural. Uh, I guess I’ll go ahead and thank the center for sex and culture right now, and Dr, Carol Queen for offering this space for us. There is a donation jar right there, you can also donate online if you want to give them some love, they gave us this space for free so that we could have this debriefing. Also, thank you, Good Vibrations for being a co-sponsor. Are we good to go? Awesome, alright. No? Not quite? Yeah, alright? Soo um, let’s see…
So I’m just going to do a brief introduction for folks, the first one is Alex Austin who runs the Austin Law Group. Austin Law Group is the premier queer adult entertainment law firm in the Bay Area. Austin Law Group was founded in 1996 by attorney Alex Austin. Alex earned a law degree from New College of California School of Law, the oldest public interest law school in the nation. Alex is on the legal referral panel for National Coalition for Sexual Freedom, Kink Aware Professionals, California Lawyers for the Arts, AIDS Legal Referral Panel and Transgender Law Center. Alex is a member of the Entertainment Section of the Bar Association of San Francisco, the American Bar Association’s Section of Intellectual Property Law, National Lawyers Guild, and Bay Area Lawyers for Individual Freedom. Austin Law Group strives to provide high quality legal services at reasonable fees, while maintaining an atmosphere compatible with the creative and adventurous nature of our clients.
Another attorney we have tonight is Karen Tynan. She is a California attorney practicing in the areas of employment law and regulatory law and holds a B.S. degree in marine transportation from the United States Merchant Marine Academy. She advises and defends California employers and companies in civil, administrative, and regulatory matters. She works with clients throughout all areas of California including the Bay Area, Central Valley, High Sierra, Los Angeles, and San Diego area. Many clients have worked with the office for at least ten years with services ranging from defending wage and hour claims, defending discrimination suits, in-house sexual harassment training, compliance, and crisis management. Karen is licensed to practice law in the State of California, including the United States District Courts of the Eastern District and Northern District.
From the Adult Performer Advocacy Committee we have per Verta. Verta is an author, adult film performer, and Secretary of the Adult Performer Advocacy Committee. The Adult Performer Advocacy Committee advocates to maintain and improve safety and working conditions in the adult film industry by giving adult performers organized representation in matters that affect our health, safety, and community.
So, the first thing I want to do is just do a general debriefing of what Prop 60 is. I’m assuming we’re all sort of on the same page about it, and I’m wondering if maybe per Verta… you want to…[per Verta cedes to Karen Tynan with a gesture]
KAREN TYNAN I’ll start then..it’s okay? And then maybe Alex will chime in and augment me… Will you augment me?
ALEX AUSTIN (laughs) If you need augmentation.
KAREN TYNAN So Prop 60 is a ballot proposition in California and it’s directed at the adult entertainment industry and it attempts to regulate the adult film industry through licensing, permitting, the requirement of condoms, and the payment of fees, [it creates] a private cause of action against producers, or possibly performers that create their own content, and it’s structured to be very oppressive to the adult film industry. It’s structured to benefit a specific person, who becomes an agent of the State to defend Prop 60 should the Attorney General choose not to enforce it and that person is Michael Weinstein…and I’m not sure what’s been online today, I think at last count he had put 4.5 Million dollars of the AIDS Healthcare Foundation’s money towards the Yes on 60.
JIZ LEE (to ALEX AUSTIN) Anything to add?
ALEX AUSTIN No, that’s pretty much how it [rolls out?].
KAREN TYNAN And as we move along people will have questions about certain definitions in the Proposition, how a lawsuit would work, how a performer like per Verta could be liable…or Jiz, how you could be liable if you created content and received a financial benefit in the distribution of that, I think that’s been our biggest concern, the liability of performers and also the fact that with the condom mandate, there’s a very vague reference to STI testing, but clearly not the robust nor the protecting type of system we’ve had in the past.
ALEX AUSTIN The one thing I could say is that this Propostion also seems to deputize every single viewer of pornography in the State of California. So if you are watching porn, and let’s say you are watching amateur porn between a husband and wife, [and] they don’t use a condom, you can potentially sue them on behalf of us who have been so deeply harmed by this… …by this motion picture. So that’s one thing I wanted to add to that, augmentation ended.
JIZ LEE Okay, Verta, speaking for the Adult Performer Advocacy Committee, what are the concerns that most performers have around this?
per VERTA I think that most performers are concerned about what provision in Prop 60 says that they can be sued or that there can be a complaint filed with CalOSHA against them. So Prop 60 defines “adult film producer” as any person that makes, produces, finances or directs one or more adult films filmed in California and that sells, offers to sell, or causes to be sold such adult films in exchange for commercial consideration. So if you use Clips4Sale or ManyVids or anything like that and you are not licensed, which would be a $100 application fee I believe, and you are not registering the place where you are shooting, you will be liable to be fined and then if someone finds that you did something wrong and decides to file complaint against you to Cal OSHA they would have 21 days to respond and then…. I would like to talk about the process of discovery because I don’t really know how that would work. So I talked with the people at the AHF and they said that if you were licensed, that your information as a producer would be available to CalOSHA so that CalOSHA [would] then be responsible for passing on that information to a resident that did want to file a complaint or a lawsuit against you. Is that how…?
ALEX AUSTIN Well let’s jump in…
KAREN TYNAN …and talk about discovery a bit. Alex and I, we live in the minutiae of discovery and litigation. So the power of lawsuits and the power of the record keeping requirements cannot be underestimated. Whenever there is a lawsuit there certainly is a required exchange of information. As many people know, when you sue another person you get rights to obtain information. Everything from their legal name, where they live, what their date of birth is, what the names of their businesses are, if they’ve ever been in a car accident. It’s very broad and so, for example, if I saw a clip with per Verta and I wanted to sue her, I would simply file a lawsuit, pay the $450 filing fee and get her served and then boom, I get to be entangled with her and enmeshed with her and get her information and then it becomes a burden of proof on her part to prove that the scene wasn’t filmed in California or the scene was completely shot with condoms and the way that evidentiary burdens work it’s very unfavorable to the performer or producer. Do you want to maybe supplement that with any of your thoughts? I mean discovery is very broad and performers have a desire and a need to be protected, that’s why they use stage names and Alex and I both have grave concerns about the ability to protect personal identifying information.
ALEX AUSTIN Yeah, it’s absolutely true. One of the things that performers maybe know, depending on how well read you are, [or] how well you’ve read your contracts, I should say, most adult performer contracts state that your information will be kept confidential except when they are served with a subpoena. So one of the things that filing a lawsuit allows is the power of the subpoena. Some folks that I work with will not comply with subpoenas when it comes to giving the information out about their performers, it really depends on the lawsuit and how aggressive the opposing party is, but some companies are just not big enough to fight these subpoenas and so they are by law required to turn over the information. And that information, as maybe all of us know under 2257, includes everything about you, every name you’ve ever performed under, your legal name, your address, your age, your everything that you’ve given to the producer. One of the other things that I wanted to just touch on really quickly was that in Prop 60 there are two things that are so different about the word ‘producers’. Normally the producers of the film are held liable for whatever is in that film. This is very different in that in every other field—not even in every other field–up until now even in adult entertainment, a director is not a producer. The director is often paid to come in, direct a shoot, and they go home. They are not a producer. In here, in Prop 60 it includes directors. Anyone who directs anything, it also talks vaguely about “anyone who causes to be sold such adult films”, the wording is so insanely vague that I don’t know that any of us have any idea what they really mean, I think it’s done purposefully.
KAREN TYNAN: Right, it’s extremely broad and it dovetails with the aided and abetted definitions which probably make Alex and me liable. We’re aiders and abettors.
ALEX AUSTIN Absolutely.
KAREN TYNAN It’s that broad…
ALEX AUSTIN Totally possible…
KAREN TYNAN And so these definitions, absolutely, are incredibly broad, they are vague, they are all-encompassing. Of course, except for how they define sex, which only involves penis. So the definitions are very problematic and our concern is that with this broad definition of producer, someone can be subpeonaing what we would traditionally call a director or even someone who worked on a set and then we put all this information at risk. We know how it works with the internet, if it’s on there for ten seconds it’s on there forever. All it takes is for someone to be fixated or to have an agenda against a performer and we are in a world of hurt, and we know that it’s not just AHF that will bring these lawsuits. We have stalkers, I’m sure that Alex and I, we could sit here and tell stories about getting TROs for performers, it’s just the nature of what occurs and so in that vein, the amount of information that can be obtained in discovery and the ability to use that information to stalk, harass, drive someone out of business, to focus on maybe content that your religious beliefs don’t allow you to enjoy, that is what the power of Prop 60 does.
JIZ LEE: So part of the goal of bringing these two wonderful district attorneys here was… you know, maybe I speak for myself, but many adult film workers cannot afford attorneys, right? Like, very few of us can, and this is such a wonderful, generous opportunity to be able to have you here free of charge to pick your brain about if this – worst case scenario- if Prop 60 were to pass, what can we do to best protect ourselves? What should we look out for? Will I see a subpoena on Nov 9th? What would I do about that? We’ve got questions from a bunch of producers and performers who aren’t here, and we will go over those as well.
KAREN TYNAN: Well I think, and you can see that Prop 60 says that if it wins in the election it is immediately implemented. I have resources in Sacramento that indicate that the election has to be certified. And each county has to send in their certified election results to Sacramento once the election is certified as either a ‘yes’ or a ‘no’, then we move forwards. I think that if you look at the number of days for the licensing and for the number of days from a complaint to when you can file a lawsuit, I expect AHF to immediately target some of the larger companies and also some of the performers who have been vocal. I hate to say it, but that’s what they’ve done in the past if they don’t care for someone’s content or believe that the content promotes activities that they don’t particularly want consumers to mimic. Those’ll be their targets. And I think that to – and Alex I’ll ask you – about protecting yourself. I mean, certainly, there are going to be some challenges, some legal challenges, based on all the problems with it. But it’s going to be a very tumultuous time. I don’t want people going November 9th down to the [Cal OSHA 17:18] office and asking for a license, because I don’t think they’re going to be prepared as an administrative agency. What are your thoughts about that?
ALEX AUSTIN: Well, I agree that they’re not going to be prepared. It’s going to be an onslaught if that really does happen, which I don’t think it will. And also we have some information that actually [Shine? 17:38] and I were talking about earlier that the Free Speech Coalition seems to be prepared to immediately file a lawsuit to try and stay this result if it does actually pass. So, there may be some time between… you know, one of the things about 22-57 is that that’s part of what happened, is that lawsuits kept getting filed, and filed, and filed, and that law has been proven to be relatively toothless. So we don’t know what’s going to happen with Prop 60. It’s basically 22- 57 there’ve been so few lawsuits brought by the government.
KAREN TYNAN: And if I did know what we were going to do after November 8th, I wouldn’t tell you. [Laughs] Because I don’t know who could be watching.
JIZ LEE: Well, we do know that Prop 60 requires us to become licensed, which is $100 every and after 2 years renews, right? That we have to pay $100 per video no later than 10 days prior to the video production that states where it’s going to happen at, and who’s going to be doing it, that we get medical records for the performers what will be doing it, that we keep on record for 4 years minimum. There’s not clarity on what to be tested for… some things like Hep B require a vaccination that takes 6 months. So there’s a potential that there couldn’t be any porn shot… you know, in this time of confusion after the election happens.
KAREN TYNAN: And my big concern with the reference to the STI testing is this: we have a P.A.S.S. system. We have a methodology and protocols that we use. When you have a vague reference to STI testing, I worry about the playing field being lowered. I worry about small producers or maybe people just getting into the business that don’t know, that are going to go to Walmart, get a quick one…[OraQuick HIV test retails as low as $19.95] that’s, what is it? $20? And say ‘Here’s your STI test. I have to pay for this for you, so here’s the $20 one.’ There’s so much ambiguity that I think it is what creates the danger. Because it would show a lowering of the standards, and I think it’s important for the industry to hold on to what we do as far as the protocols and processes. And if we’re going to have to fight it in the court, we’re gonna have to fight it in the court. I am concerned about the licensing and the permitting because of the free speech issues with that. And I have never had this type of licensing issue for any clients. This is kind of a new way to harass pornographers… sounds like a follow-up to 22-57 and I do have concerns with people going down and having to get a permit for what kind of speech they’re going to do. I think it smacks of 1950’s-19… it’s scary.
ALEX AUSTIN: Absolutely, and just in case people don’t know that one of the beautiful things about filming in California is that it’s actually legal to film adult content in California. The only other state that we can count on for it to be legal is New Hampshire. It’s really cold there. [Laughs] Nobody really wants to go and film there. There are some counties in Nevada that it is ok maybe because prostitution is legal. The majority of the states in this country equate prostitution with pornography and treat it in the same way under the law. So that is one of the things that is coming up a lot in terms of where to go, what to do if Proposition 60 passes.
KAREN TYNAN: Right, we have thriving adult film communities in Las Vegas, in Miami, Phoenix, and New York City. There just haven’t been any cases that have distinguished prostitution from pornography, although we have people ready to take that case. There just doesn’t seem to be any interest from the authorities in Nevada. I do see a lot of people scheduling January 1st as a ‘pull-the-pin’ day if Prop 60 passes, there’s twenty moving vans going to Las Vegas and we all need to buy some moisturizer I guess.
ALEX AUSTIN: You gotta hand it to the bar in Nevada.
KAREN TYNAN: I hate Las Vegas. [Laughs] So we have these kind of dilemmas and I think that we can make this big push now. We’re very close. The polling numbers are close. When you see polling numbers that say we’re behind 70-30, those are very shaky polls that ask people ‘Do you believe in condom use in pornography?’ They’re not really full, accurate polls. Our last numbers were 40-40-20 for ‘yes’, ‘no’, ‘in the middle’. We know that undecided voters break ‘no’ about two thirds, so we need a big push to move people from ‘undecided’ to ‘no’, and from ‘yes’ to ‘undecided’. That’s what we need these last four days, and I think that if we can do this, and I think it is within our grasp, that the brass ring is there. We’ve seen it with our earned media, we’ve spent [around four hundred and something thousand dollars, he’s spent about four and a half million. But does anybody know the papers that have come out for Prop 60? Right, the [Bakersfield 23.42] something-a-rather…
ALEX AUSTIN: [multiple voices speaking] Yeah, almost every newspaper. Almost anyone who’s read this thing carefully, or as carefully as you can, because much of it is incredibly vague, has looked at it has said this is, this is a little bit nuts. That I can personally sue anyone who’s in this film, potentially. Because, again, the way that it’s written is incredibly…
JIZ LEE: Let’s go back to that question. So-
ALEX AUSTIN: Sure
JIZ LEE: It does state that it’s non-condom sex, if you don’t see a condom, although it also states that you can remove the condom post-production, so it’s really iffy and vague there, but non-condom sex between a penis into a vagina or anus, right? If you’re shooting a cis lesbian scene, if you’re shooting softcore sex, BDSM that doesn’t involve sex, potentially other kinds of fetish films that might fall under ‘adult’, are these… could someone still go after you and sue you? Even if it was a cis lesbian scene-
ALEX AUSTIN: Yes
JIZ LEE: You’d have to defend that there was no penis?
KAREN TYNAN: So there’s a clause in here, I had it underlined, but what happens in Prop 60 is they have a reference to present and future [CalOSHA? 25.04] regulations being incorporated into Prop 60, and so if you look at the present structure, it goes to ‘mucous membranes’, which is what it discusses. So, while we’ve had some people looking for that great silver bullet and saying “Can I film strap-on sex?” and “Can I just do oral sex?” I think that you have to really have that in-depth understanding of Prop 60 and know that it also pulls the present [OSHA? 25.37] regulations, and any future regulations under the umbrella of Prop 60. And that’s very dangerous.
ALEX AUSTIN: And when Prop 60, in its previous incarnations, that were shot down twice I believe, and now they’ve lost everywhere. So they’ve now gone to the people to see if they could win. And one of the things that we in the industry, and a lot of performers and producers are very concerned about is this amorphous ‘mucus membrane’ issue. Like, so, does that mean you’ve got to wear goggles if you’re performing oral sex? Does that mean that every single thing has to be covered? And so we’re very concerned that they’re going to look at those definitions and incorporate them into this proposition.
KAREN TYNAN: Yeah, and I think that one of the reasons this proposition is so discriminatory, and many of my gay studio clients that film [cis] male-male sex is they take a look at it and say “well, why is this defined so narrowly towards me?” It looks very discriminatory on the surface. And I think that is a very good argument that, well, first of all, it’s clear to me that whoever sat in a room and wrote the definition of sex is a normal white guy. Because it only involves – [laughter] Right? It only involves his penis. But… and you look at the definitions, it just, it boggles the mind. But these definitions are a big problem in Prop 60 and you’ve got to have people reading these details… and that’s the hard part for voters. And so what we’ve tried to do in the campaign is really pull out these details about harassment, about people’s names and information, and about how vague the language is. How difficult it is to understand it. And the problems with enforcement.
ALEX AUSTIN: If you don’t mind, one of the things that I’m interested in hearing from Karen- I hope you don’t mind, Jiz, is I’m not a [ cat road show? Cal-OSHA? 27.49] regulatory attorney. I’m an entertainment attorney who has a specialty in Adult Entertainment, and I would love to hear what the [Cal-OSHA? 27.59] process is, because I’m even not terribly aware of what it is, and I think it would be interesting for everyone.
KAREN TYNAN: Yeah, let’s take everybody through what a complaint looks like, and what that would be. How about that?[Agreement]
JIZ LEE: Whee! Here we go!
KAREN TYNAN: Everybody got their thinking caps on? So how a complaint starts, typically 80% of the time it involves a complaint from AHF, just so you know. And they’ll send in a letter or make a phone call, or send in a DVD or a thumb-drive with a scene on it. And it’s ranged from they’ve gone and purchased DVD’s, or they’ll copy something online and they will initiate a complaint with their nearest [Cal-OSHA]-
JIZ LEE: Can I interrupt you real quick? So, even if it’s pirated porn? Even if it’s a custom video that they paid to have made?
KAREN TYNAN: Yes. There’s no exception for custom videos or anything like that.
ALEX AUSTIN: And also just coming back to the softcore issue, there’s no exception for softcore if it involves the dreaded penis-vagina, or anal-penis sex.
KAREN TYNAN: Exactly. It’s interesting that there is a- we’ll come back- let’s talk about the [MPAA’s 29.12] exception, [something 29.13] because it doesn’t really work, does it? So, the [CalOSHA] inspection, so they call [CalOSHA], and under the labor code, [CalOSHA] has three days in which to act. ‘Acting’ can be either they go out and investigate, they can call you, they can send you a letter. And I’ve seen it happen where it’s any of those. And they show up unannounced, usually in pairs, and they are entitled to come into your workplace. I have seen where people have refused… there’s a recent case that’s… I don’t want to call them out, but…in Los Angeles where somebody refused entry to [CalOSHA], so [CalOSHA] went and got a search warrant. There’s no way they’re not coming on the property.
ALEX AUSTIN: How would they get your work address?
KAREN TYNAN : The 2257 that’s up on the internet.
ALEX AUSTIN: That’s right.
KAREN TYNAN: There you go. If your home address is your 2257 address, guess what? That’s where they’re coming, which is what happened this year in one of the complaints. Cal Osha also subsequently gave that address out to the media, which was really nice for the performer. They go to the address. Let’s say they show up to your door and heard a knock, have a badge, one of those photo ID badges. They are state employees typically with an industrial hatching background or an industrial engineering type background. They are going to ask to walk around. They are going to want to ask questions. Then they are going to want documents. As I’m sure Alex is 100% in agreement, they can walk around and do anything they want to do. They can take photographs. They can request documents, but for my clients, and I’m sure for Alex’s, nobody is going to get interviewed that day. Do you agree?
ALEX AUSTIN: Nobody talks.
KAREN TYNAN: After an initial inspection and a soupeana, or a demand for documents, which typically asks for 2257 documents, model release agreements, pay roll, or check registers, Cal Osha will make a determination if there’s been a violation in the last 180 days. Prop 60 changes the statue of limitations to a year from 180 days. That’s a big problem for us, doubling it. No other industry has a statue of limitations longer than 180 days, so that would be very burdensome. Cal Osha issues a citation with a monetary fine. You have only 15 days to appeal that. It’s a very quick time frame.
The appeal is very simple. It’s not difficult to do, but you do typically have to have an attorney do it. It is a process that requires an attorney. It’s not something to do yourself. It can be very burdensome. I don’t want people to feel that the only problem is the lawsuit part of Prop 60. Alex is right. The real issue is even having to deal with an inspection, with getting your documents together. It’s a distraction from your business.
ALEX AUSTIN: It is and I’m wondering if you have any idea yet what the range would be for the fines that they can levy.
KAREN TYNAN: Typically, if Cal/OSHA classifies that as an extreme violation range from $9000 up to 20-something thousand. If it’s the second time around, which some people have seen with some of my clients, they raise it up to $70,000 dollars. If you search social media you’ll see that if they find a production company, $73,000 small production company with a female performer 20-something thousand. Then there’s the cost of dealing with it. The fines are not insurable. “Oh, it’s a safety problem. Maybe my homeowners will take care of it or my workplace insurance.” The fines are not insurable. It’s not insurable. It has to go out of your pocket. That’s a real problem for smaller companies.
ALEX AUSTIN: It’s a problem for bigger companies as well, however, it could be a business ending for a small company.
SHINE LOUISE HOUSTON: Coming back to the statue of limitations… We have a website. We have years and years of content on there. If we took down the stuff that was less than a year old, the other stuff could still stay up there and they couldn’t sue us or they could still sue us?
JIZ LEE: The question was if content made between November 9th 2016 and November 9th 2015 is safe.
KAREN TYNAN: I don’t think Prop 60 is retroactive.
ALEX AUSTIN: It states that it’s not. So once it goes into affect, we’re all hooked.
KAREN TYNAN: It’s a tenant of our democracy that we don’t pass laws that are retroactive
They’ll provide you notice. It won’t be retroactive. However, if you do have scenes where a condom is not visible, if you do get sued and inspected, it’s going to be your burden to prove when, where it was shot and if a condom was used
AUDIENCE MEMBER: What would you recommend producers do to prove that? It sounds like if anyone wants to do anything they want to do this weekend
document where their shit was made.
ALEX AUSTIN: I would recommend you do everything that you can possibly do without a condom this weekend. There’s a possibility that I’ll have to advise people to go back to these scenes and ensure that they all say that these were produced
AUDIENCE MEMBER: A lot of websites already have that 225 placard in the beginning What if you had a section on your website that said, “Pre Prop 60 Section”
KAREN TYNAN: We would all love to be able to walk into the court and raise your hand to the judge and go, “Let me tell you how it really is. You have no idea who this Weinstein guy is. He is suing us for no reason.” It doesn’t work like that. When someone files a lawsuit it’s true until you prove it otherwise. That’s the problem with it. The burden shifts to the defendant because of the way pleadings work in California. Then it does create a problem of saying then am I disclosing people’s personal identifying information? Jiz was in this scene. Oh, well, who are they? You don’t want me using your driver’s license, do you? We can only do it with these documents.
ALEX AUSTIN: Also, having each Californian deputized to keep their eyes peeled for films and scenes that don’t use condoms, they’re not looking at dates. They’re looking at porn. They’ll be able to report those as soon as they see them. Doesn’t matter to them if it was filmed in 1987. If they think they’re going to pull their vigilante hats on and make the world a better place. You are know there are going to be people that are going to be very excited about reporting everything they see.
AUDIENCE MEMBER : And they get money, right?
KAREN TYNAN: Right and so under this clause and the way the private Attorney General Act is written, the person would get to keep 25% of any recovery and plus their attorney fees would be paid…
ALEX AUSTIN: By the defendant.
KAREN TYNAN: By the defendant…by, her if she was a defendant. And I can tell you, after measure B passed in Los Angeles I was speaking with someone at the Health Department and they said that they got, I don’t know, probably a half dozen letters from men who were interested in being in the permitting and licensing department for porno films, right? So there’s a group of people and whatever their purposes are, whether it’s about particular activities or a particular, person or a particular genre, they have a way now to take that agenda to a new level and turn lawsuits into spectator sports. And Sometimes us lawyers we use hyperbole and we use spin and we overstate things, I don’t feel like that’s an overstatement, do you?
ALEX AUSTIN: No, sadly, this is one of the worst written, most vague Propositions I’ve seen in my lifetime, and the fact that it affects a huge part of my clientele and Karen’s clientele is more harrowing, however if it was about dry cleaners it would be horribly written.
JIZ LEE: A question over here
AUDIENCE MEMBER: Yeah, is this Proposition even Constitutional?
ALEX AUSTIN: Absolutely not. That’s my position.
KAREN TYNAN: The long lawyer answer is “no” and the really long one is “hell no”. So if you look at the front of Prop 60 and it was written, AIDS Healthcare Foundation paid to have it written by a law firm down in Los Angeles, Bradley Hertz at the Sutton Law Firm wrote Prop 60. And they tried to get around, interestingly enough, when they gave Michael Weinstein all this standing and all this power, they did it going back to Prop A, you guys remember Prop A, right,…yeah, we all roll our eyes and…right… On Prop A there were issues of standing and issues of who would defend a badly written and un-constitutional law, and that’s what he’s trying to get around here, and that’s a connection that I really feel like needs to be made in our community so that people understand that here’s a man spending non-profit money and he’s trying to maneuver and get around the case law that was associated with Prop A and have his will be done on the industry, and we can’t let that happen.
ALEX AUSTIN: Agreed.
JIZ LEE: I want to ask about… the idea that someone could buy a custom video from someone but turn around and use that custom video against them? I’m curious about this because if they buy it that makes them a producer, is there some sort of, you know, ownership, sort of contract that someone who does custom videos can cement the buyer into saying “well now I’m a producer” so they obviously can’t sue themselves?
KAREN TYNAN: You know it’s interesting to think about that, there’s no exception for custom videos, married couples or anything like that in here and I think it’s gonna be really tough, certainly us lawyers can try to write contracts as best we can, but there is no true exception in here for when you create a video at the behest of another person for sale to that person, this law doesn’t recognize how the commerce in our industry really works now.
JIZ LEE: There’s another part of that which is cam shows, because it also applies to broadcasting, so if you have a couple of cam shows that happen it can apply to that, however a lot of cam sites have this kind of non-disclosure sort of agreement between the people purchasing the shows and the models, you know that they are not going to record the video and release it, that kind of thing. So I also understand that it also doesn’t really like…there’s no clear…
KAREN TYNAN: It’s unclear. This law was written and it didn’t contemplate the technology that we use.
ALEX AUSTIN: Yeah, and I think one of the things that could happen, and again this is all gonna be based on lawsuits and the interpretation, it’s absolutely possible that someone who requests particular content from a performer, and pays for that content…that their standing, meaning they have the ability to sue, will be suspect. And, of course if I were a judge I would say “absolutely not, you can’t sue for something that you’ve requested. That makes absolutely no sense in logic or in jurisprudence. So my hope would be that there would be pushback if that sort of thing happened because it just smacks of a complete setup.
KAREN TYNAN: Right, the setup aspect of it is the problem and with Prop 60 with not recognizing how the industry works, how camming works, that you are going to get a revenue share, so if you are camming you do have a financial interest in that performance, right? So there’s no way in camming that a performer if you’re camming and you’re either doing the acts proscribed here or that would fall under the CalOSHA rules, you have a viewer in California you are gonna have a tough time.
ALEX AUSTIN: Exactly. And again, not to beat a dead horse, but we really have no idea what they mean by having a financial stake in the product. It could mean you have a financial stake because you’ve been paid to perform in the film. It could mean you have a financial stake only if you’ve actually put money into this film. It could be as broad as that and we really don’t know how it’s going to be interpreted.
KAREN TYNAN: Right, if you use an affiliate code on your Twitter and you promote a scene and you get paid for promoting that scene, you then have a financial interest in the success of that scene. And I know we’re doing a lot of lawyer talk, but I wanted to hear from Per Verta because the mechanisms for performers to make a living and to create content that they want to share with viewers, it’s not just showing up and doing scenes. It’s much more than that. And I wanted to hear from you kind of what you thought about the ways performers can be held liable and what that would mean to you.
per VERTA: Okay. So, I spoke about this, kind of, in a YouTube video. When the cost of testing to shoot – even customs, when I’m not shooting with a company – also having to license my home address as a place of business and then having to pay every time I want to shoot there, that would just bankrupt me. I don’t have money to do that. I definitely don’t have the money to go to court to prove that I didn’t do anything wrong and I was forced to start shooting Prop 60-compliant pornography. But I think that the most important aspect of this – so I spoke with some people at AHF and they said that the only way to avoid the negative consequences of Prop 60 (lawsuits and your legal information becoming public) was to shoot porn illegally. And, yeah, they said that. Yeah! I know! And they would not admit that that would inevitably drive the industry underground because they just want to have circular conversations but I think it’s very important to know that even if that does happen and you are shooting porn illegally, as a performer, you still have rights. Not to think that Prop 60 being the law would mean that you would have to agree to do things on set that you don’t do already.
KAREN TYNAN: Right.
per VERTA: So I think it’s very important that we touch on that.
ALEX AUSTIN: Yeah. And one other thing that I just wanted to mention really quick which has very much to do with performers is that the proposition does state that you can, let’s say, remove the condom via technology after the shoot. Or, if you’re really good at what you do, maybe no one even sees the condom when you’re having the vaginal or anal sex with the penis. So, that means there are ways to hide the condom. And yet, that’s what they’re looking for. Talk about circular.
JIZ LEE: This quote was that if Steven Spielberg can make dinosaurs real, then basically we could CGI the condoms out in post. I’m like, most porn budgets are less than the cost of catering on Spielberg’s set. Not realistic.
ALEX AUSTIN: It’s not. It’s not. In essence, it’s interesting just in terms of the thought process – or the lack of thought – behind the way this proposition is written.
OFF-SCREEN VOICE: Earlier, you said that it was really unconstitutional. So if Prop 60 is passed, would you make an appeal to the Supreme Court so that nothing like Prop 60 could ever pass anywhere in the whole country?
ALEX AUSTIN: It’s a very long road from here to the Supreme Court. But, I think that there’s always a possibility that this could get there. I think with enough money and with the perfect defendants and all those wonderful things, it’s absolutely possible. I’m not sure how probable it is –
KAREN TYNAN: First and foremost, we would have to get an injunction against enforcement of Prop 60. I think that if we do that – well, we would have to do that for the industry because we can’t operate under this. It endangers the performers, creates too many problems. And so, the process would be trying to get an injunction, and then after the injunction, having a judge decide the unconstitutionality of the various provisions. And don’t forget, in the Measure B litigation, there were parts of Measure B that were held to be unconstitutional. And they tried to kind of fix that here with Prop 60 but didn’t do it. And they went very broad in the performer liability. There’s just a lot of really good legal arguments against it. I think that we certainly don’t want to be caught on our heels if this does pass. But I think that it would be a long, hard slog on this issue.
ALEX AUSTIN: Yeah. And maybe everybody knows this, but you don’t go straight from an injunction to the Supreme Court. You have to go through many courts.
OFF-SCREEN VOICE: A lot of courts, yeah.
ALEX AUSTIN: And then the Supreme Court may or may not even accept looking at it.
OFF-SCREEN VOICE: They only accept like 80 cases a year, I think is the number, right?
KAREN TYNAN: And here’s an intriguing issue with it – and I look at the recent rulings regarding abortion clinics – is that the way that those clinics are being regulated in states that wish to impede a woman’s right is through safety regulations, right? They pass laws about Oh, well, the hallway needs to be eight feet wide so you can get two gurneys, and you need admitting privileges and you need wheelchair ramps and all this. It has nothing to do with safety but it’s a facade, right? And I think that clearly, here, this Prop 60 is not about performer safety because the performers, as you can see, are very opposed to it. In the past, Michael Weinstein has publicly said that consumers watch porn and learn from porn and mimic the behaviors they see in adult content. He wants consumers to see condoms. That’s it. And so, similar to clinics that provide healthcare for women, he is trying to regulate us and force condoms into content or force us out of business.
ALEX AUSTIN: Agreed. Absolutely. 100%. And not to call anybody out but, Ari, I saw your hand up earlier. Did you have something you wanted to… (laughs)
ARI (OFF-SCREEN): I’m gonna be honest with you, I completely forgot.
ALEX AUSTIN:: Okay. Alright, good.
JIZ LEE: Nikki?
NIKKI (OFF-SCREEN): Even if, say, we shoot a scene and we shoot it with a condom, but then when you guys were talking about the mucus membrane regulation, so does that mean even with cunnilingus between a cis male and a cis female? So even if that is shot with a condom, if there is footage of unprotected oral sex, does that still also make us liable?
KAREN TYNAN: Under the Cal OSHA rules, it does.
ALEX AUSTIN: Under Cal OSHA, but not under Prop 60.
JIZ LEE: And there was a citation of the film, I think Rhonda Arouse Me, that had a cis lesbian scene that was cited.
KAREN TYNAN: Yes. Very much so. And having litigated some of these cases and seen the way that the doctors that are on AHF saw it and that pander to this idea that there’s an STI issue or that testing is inadequate, they very broadly – they talk about kissing, they talk about oral sex, they talk about all these different ways. And I know John Stagliano’s fine with me mentioning this, the scene that he was prosecuted for was a solo scene with Layla Price where she’s squirting on his arm.
OFF-SCREEN VOICE: What.
KAREN TYNAN: I know.
OFF-SCREEN VOICE: Wait, so –
KAREN TYNAN: Yeah, I know. You’re like, what, wait?
ALEX AUSTIN: It’s a head-scratcher, isn’t it?
KAREN TYNAN: Right.
OFF-SCREEN VOICE: What if a dude eats his own cum? Does that count?
KAREN TYNAN: Right, exactly. That’s the issue, is that the activities that happen and the way we express ourselves and the performances that are recorded, they don’t fall under the paradigm of what some of these industrial hygienists or doctors or associates of AHF believes to be activities that are contemplated – how do I say that –
ALEX AUSTIN: Well, we are a very creative industry.
KAREN TYNAN: Right.
ALEX AUSTIN: In essence. And we come up with things that these people never think of. You have no one to try to include it, which is why they’ve painted it with such a broad and vague brush.
OFF-SCREEN VOICE: So two things: number one, I’m live-texting with Siouxsie Q right now
MANY VOICES: Hey Siouxsie!
OFF-SCREEN VOICE: So I’m going to make a public service announcement right now. I’m making a PSA because I’m also going to have to leave before the end of this meeting, unfortunately. I’m gonna ask my question. So, very quickly, Siouxsie as a representative of the FFC, just texted me that voters in California are receiving packets in the mail that are attacking Scott Weiner directly from the perspective of Cameron Adams, otherwise known as Cameron Bay from the industry. And she is looking, and the FFC is looking, for media coverage. They will pay performers to write articles for media publications on how Weinstein’s attacking – stopping her – basically in an effort to make sure no politicians take (Sputnik?) out for us ever again. So if you are interested please hit up FFC if anyone here would like to get paid to write a piece or do any kind of media coverage on that is number one. And the actual question – I’ve been doing a ton of advocacy on Prop 60 and what I recently heard brought up is an argument from this for the measure is that there’s this 1992 Cal OSHA regulation that states that we should already be legally using condoms and we’ve been unabashedly breaking the law since 1992. Can somebody speak to that so I have a talking point?
KAREN TYNAN: Here’s your talking point: in ’92, ’94… some of you probably weren’t even born then. That’s totally creeping me out.
MANY VOICES: (laughter)
KAREN TYNAN: Think back to that time and there were situations where nurses and healthcare providers were taking care of very sick people. At that time, there was not a treatment, the protocol, the prevention, for HIV. And so if someone did get a needle stick in a hospital, or a splash of blood, it could’ve been life ending. So in the ’92 timeframe, Fed OSHA and Cal OSHA passed a section called 5193. So there’s your perspective about what was passed at that time. And it’s for hospitals, funeral homes, nursing homes. They never contemplated the adult film industry. The word “condom” is not used. And even, at one time, and Matt remembers this, I ordered the legislative history of that section. It’s actually about six feet tall in paper. And I can’t remember what it cost, but you know how it is when you order these records. And the word “condom” was actually used in the legislative history in two places, just as an interesting side note. And in both places it involved if you worked in a nursing home and you were helping a resident get rid of a condom, what did you do? Two old people fooled around.
OFF-SCREEN VOICE: (indecipherable) this is applicable to the adult industry, or should be applicable to the adult industry?
KAREN TYNAN: Cal/OSHA has and has tried to enforce it. We’ve litigated it. Certainly the universal precautions that are contemplated under that law contemplate hospitals. They contemplate sick people. They contemplate working with sharp instruments. And they contemplate working in an environment of – I don’t want to say emergency rooms and hospitals have an energy or pandemonium, but it’s clearly a different work environment. And so when you think about universal precautions, very sick people, sharp objects, the kind of work that healthcare providers do, it does make sense to wear gloves, it does make sense to wear a mask. It does not make sense for the industry. Just lay the stage for 1992, and then talk about everything that was discussed at the federal level and state level involved how do you handle a dead body? The regulations in place actually contemplate, like, tissue samples. They have all these things about, like, cabinets you keep stuff in and all this. So it really contemplates a hospital setting.
INTERVIEWER: Which is why I assuming it’s so important that the industry is working with Cal/OSHA right now to generate regulations that are specific to the porn industry.
KAREN TYNAN: That’s what we want. We want, and some of you were there in February, and we are working toward and industry specific regulation. We want it to have protocols that work that also protect workers on set, right, that might be explosed –
INTERVIEWER: (laughter) that’s a different scene.
KAREN TYNAN: Ok you can do that scene and give me a royalty. So we need a regulation that contemplates the activities that happen. A broad variety of sexual activities, not simply some man’s paradigm of activities. We need to contemplate the testing protocols. What we also need to contemplate is the fact that this is 2016. In 2010, when Michael Weinstein first started attacking the industry, think about that. That was 6, 7 years ago. What has happened since then in healthcare and in vaccinations and in PrEP? and so we don’t want a regulation that stands still. We want a regulation that has language that can evolve with us. So you can always be using the latest FDA-approved test, the latest medicine for prevention, the latest protocols. And being stuck back, I mean think of it now, the difference between ’92 and 2016? We don’t want a regulation that doesn’t move forward with medical science and technology. At all.
INTERVIEWER: Are there any regulations out there that are already dynamic in the ways that we are aiming to make a Cal/OSHA regulation applicable for a long period of time?
KAREN TYNAN: The good thing about Cal/OSHA regulations is that they typically don’t like to get tied into a very specified name of equipment and stuff like that What they want is language that says “you will use methods that minimize or eliminate the hazard.” And we want to be able to say, through all our protocols and everything we do, we minimize or eliminate the hazard. That’s what we want to do. And I think that knowing that we’re in a field with advancements that happen, I mean think about the advancements in testing protocols? We wouldn’t want to be tied to what the testing was in ’92. We wouldn’t want to be tied to what the testing was in 5 years ago. We want our PASS panel and the epidemiologists that FSD works with, we want them t be able to take the best information and give us the best protocols.
per VERTA: There’s also, they’ve kind of argued that Cal/OSHA is limited to condoms cause that’s the Federal base. And that they can’t do anything that doesn’t match federal regulations. But Federal OSHA has not rule that our system, the P.A.S.S. system, is not as effective as condoms, so don’t let them tell you that condoms are mandatory and are always going to be mandatory and you don’t have a choice, you just have to use one.
JIZ LEE: I think we all know about Cal/OSHA Proposition 560, which is –
[Jiz mispoke; PETITION 560 to amend section 5193.1]
KAREN TYNAN: 5193.1. That we’re going to actually, we’re gonna do a Prop 60 until November 8, but then January 31, we’re going to have a stakeholder meeting here in Oakland, and I know that you’re going to be putting out more information, and we will rally and we’ll make sure stakeholders have a voice. We need to get through this November 8, and then we’ve got our next chunk of work set out for us. But I think that if we can get industry appropriate regulations and we can as a workforce show that we’re good employers, what the workforce wants, I think the performers need to have the biggest voice.
ALEX AUSTIN: Yeah, I can’t think of another industry where the workers don’t have the biggest voice. If you think about other industries that have some hazards, it’s those workers that are saying “This is what I think is hazardous to my job, to my health, to my life, to my family’s income. And let me talk about what is necessary.” I can’t think of another industry that they don’t go to the stakeholders so to speak and figure out and work with them to ensure safety. Or to ensure as much safety as possible I should say. Because there are so many industries in which there is no way to maintain 100% safety.
KAREN TYNAN: so there’s all this attention on the adult industry. Does anybody know, I want a guess from somebody, how many workers are killed in the workplace a year in California?
AUDIENCE MEMBER: Hundreds.
KAREN TYNAN: Hundreds. Right. About 400 every year, between 350 and 400. How many people are killed making adult content?
KAREN TYNAN: This is inversely proportional it seems. If you take a look at the industries that are high hazard – there’s a classification for industries that are high hazard, like law, working in warehouses, all that – they’re in a high hazard industry and there are specific protocols. Adult entertainment is not high hazard.
ALEX AUSTIN: in any way shape or form. It’s never been proven. It’s barely even discussed as a high hazard.
INTERVIEWER: Prop 60 says that we are risk of HIV in the language of the bill and I want to know where are they getting this data from?
KAREN TYNAN: So back in about 2010-2011 a doctor down in LA did a slide show at one of these Cal/OSHA meetings and he made wild claims and somehow that has stuck even though the LA Department of Public Health has made the Sacramento Bee do a redaction when the Sacramento Bee printed those numbers. So you can look it up, it’s a report by Dr. Peter Kern and it’s promoted by AHF, they give these numbers out. What they did is a couple different things. They utilized a clinic in Los Angeles that is a treatment clinic, so everyone that goes there, goes there for a purpose, not just to be tested. So it really bumped the numbers up. It’s like going to an oncologist and saying “My god, cancer’s broken out!” it’s just ridiculous. So they did that, they used a clinic – a treatment clinic – ¬¬¬¬to boost the numbers. And then the other part that I found interesting is they compared the adult film performer population to the general population. Ok, well I don’t know about you, but if you compare somebody who is 20 years old and having fun, they’re gonna have a very different lifestyle than me, and the comparisons of our activities and our need to be tested are very different. I think any kind of comparison is gonna skew the numbers. So that’s what they did to skew the numbers, those 2 different things. And we actually had a doctor, Dr. Mayer, at –what’s the medical school back in Baltimore? – at Johns Hopkins take a look at the numbers and actually dispel them. And we’ve used that report quite a bit. The other thing that AHF does is they’ll kind of cherry pick numbers and various claims from people who’ve tested positive quote-unquote “while they were working in the industry” when in fact the people were exposed and contracted an STI in their private life and that’s the other thing that gets used. The preface to Prop 60, which states that there’s widespread transmission and that there’s a danger to public health is unsupported by both the LA Department of Public Health and the San Francisco Department of Public Health. Neither of those public health departments believe that there is a crisis nor any issues like that are put forward.
DR CAROL QUEEN (Off Camera ) So this is taking us back into the weeds of history a little bit and if you think it’s irrelevant just say so, but it really tags on to what you were just talking about, which is Weinstein’s back story with AIM Healthcare, in which people were cooking up a from the industry sourced testing protocol that seemed to work pretty damn well most of the time and the way that he became this problem child for us was via going after AIM, which stood for Adult Industry Medical. I don’t know if you want to add anything to what I just said but I know that because this is going to be webcast or available for people to see afterward, I just thought that this might be an additional fun fact when we try to interpret the motivations of this person and how super helpful he is to the healthcare of this industry.
ALEX AUSTIN: What I would love you to talk about Carol before you give that microphone back is what AIM brought to the industry at the time because it was important and it was founded by performers and former performers. Can you speak to that for a moment?
DR CAROL QUEEN: Right, well if any of you would like to add to what I’m about to say please do, but Sharon Mitchell had been performing in industry since I think the late 70s, got a doctorate in sexology and really made this her passion project, along with some other people within the industry and supportive health care professionals, to make a clinic in which people could get their regular testing done in a context where they would feel safe and understood and seen. And what I remember about the discourse of the period of time when AIDS Healthcare Foundation was going after them was that – in the first place it very much looked like AHF was trying to get the business. In the second place, they used this mix that I think we’re seeing in Prop 60 too – of shame and fear mongering and “we are the only people who can help with this. You people aren’t doing it right.” But the fact was that –AIM actually managed to get virtually everybody who was working in the industry which was primarily in Southern California to get regular testing, to testing protocols which I think now have become accepted within the industry there was a moment in time when they were serving as a test space for a new prophylaxis, so they were a super significant space in which not only HIV and STD prevention and testing happened, but also the people within the industry understood that they had a role that they could play to help make sure that their safety needs were being met and they got agency of a very particular kind and it was valuable, and AFH came in and knocked down like a bunch of fucking bowling pins. It was quite offensive to see that go down and we’re not hearing a whole lot about this in the Prop 60 discourse, but every time I tell anybody who is just a stranger and knows none of these things about Prop 60, I start with that. I think it’s telling.
ALEX AUSTIN: it is. Thank you for the history, and I just want to interject that one of the reasons that AIM aims were implemented is because it was industry lead and it was respected. This is a huge problem with AHF, is that it’s not industry lead and producers, directors, performers do not respect AHF. And this is proving problematic for everyone in the industry.
ALEX AUSTIN: It is, thank you for the history, and I just want to interject that one of the reasons AIM and its aims were implemented was because it was industry led and it was respected. This is a huge problem with AHF – is that it’s not industry led and the producers, directors, performers do not respect AHF. And this is proving problematic for everyone in the industry.
KAREN TYNAN: Yes, I absolutely agree and I’m proud to say that AIM was my first adult industry client [ALEX AUSTIN: ‘Woohoo!’] and that’s how I got into porn
ALEX AUSTIN: that’s fantastic
KAREN TYNAN: So I actually got the call the day, in 2009, there was a person from the public health department there, there had been an HIV positive test for a woman who got HIV outside the industry and who asked to be known as ‘Patient Zero’, and the Public Health Department and Cal/OSHA wanted all the performer records. And so that’s how I became in this kind of battle of the subpoenas, and then it just snowballed from there. But in working with AIM, and seeing them sued out of existence – AIM was a nonprofit, so that means it was, y’know, bubble gum and popsicle sticks, it was truly run on a shoestring – and so when AIDS Healthcare Foundation got two plaintiffs together, it was two performers who had been out of the business but AIM still held their medical records, and there had been a database breach kind of thing, and so AHF sued them. AHF has four attorneys on staff, they file lawsuits, you know they filed against San Francisco ‘cos you guys don’t want the big giant pharmacies, you want neighborhood pharmacies, and that’s part of the San Francisco, um, that’s kind of how we are here, and so AHF sued the clinic out of existence. And so performers picked up the pieces, worked with the Free Speech Coalition, and got a system going where we have a database that can’t be breached, because it doesn’t hold medical information, and implemented a system with talent testing and cutting edge testing where we don’t have all our eggs in one basket, that in fact we have a couple of different testing facilities, so that we can’t be held hostage by AHF. But we had wonderful health care, it was a clinic that served performers, it was a very sex positive place, it was just – it was non-judgmental, we had a consulting physician Dr Hamlin, the person that ran it was a former performer who was then an STI counselor, and all of that was crushed like a tiny little grape by AHF.
So that’s how it started, so don’t think “Oh, well they just really want to help performers”. So when you get that context, which I’m glad you brought it up, that’s the context. So, for example, when we debated Adam Cohen and Derek Burts at KGO they’re very proud in saying “We’ve been fighting for this since 2009” and I think to myself “You’ve been trying to crush us and crush the soul out of these performers and their health care for seven years now. Way to go.”
JIZ LEE: I want to check if there’s any questions from the internet? If you’ve noticed, on Facebook or..?
MATT MASON: a couple, yeah. One is “Why does the adult industry not work closer with the creator of this proposition or the AIDS Healthcare Foundation for testing or treatment?”
JIZ LEE: Can I just say he doesn’t want to talk to us. We’ve tried it on numerous occasions, and numerous ways, to talk to him and it’s not been fruitful.
KAREN TYNAN: I agree. And he’s tried two bills in Sacramento. We have reached out repeatedly. I know that Lorelei Lee, Chanel Preston, others have personally requested meetings. They have gone as far as going to the Legislators Office that have the bill for AHF. There is no interest in working with us, there is only interest in shaming the industry, shaming performers and I don’t know how to work with someone that’s a bully.
JIZ LEE: per, do you want to talk about the petition that APAC put together?
Per Verta: Well I wasn’t really a part of that.
JIZ LEE: Oh, you came on later, yeah.
Offstage: Well here’s another question, part b of that question is “The testing provided by the AHF, is that the same type of testing that’s already being done within the adult industry?”
KAREN TYNAN : No.
JIZ LEE: No, it’s not.
KAREN TYNAN: No it’s a very specific panel and Verta, she gets the panel so we’ll have her talk about it, but it’s important to know that the clinics and the labs that provide that panel, it’s a very particular panel, if I went into Kaiser (? 01:19:30) and said “I want to be tested for HIV”, what kind of tests would I get?
Per Verta: You would get the rapid test, yeah the ELISA.
KAREN TYNAN: ELISA, yes. I would not get anything like what you get.
Per Verta: So, I don’t remember what the FSC said what the cost would be for testing just for a person, a performer who hasn’t had testing in the past, but I think it’s close to $1,000?
KAREN TYNAN: Yes, it’s $980.
Per Verta: So we pay $155 or $165 every two weeks to be tested for – and let me know if I forget anything – HIV, syphilis, hepatitis c, hepatitis b, trichomoniasis, gonorrhoea and chlamydia. And we have the best tests available, so I think it’s a window of 10-12 days that the HIV test can pick up on the RNA – that’s right? I always get those confused.
Offstage: So the current tests that the industry use are more up to date that what the AHF currently provide?
KAREN TYNAN: Absolutely.
Per Verta: Yes.
Offstage: Yes? Ok.
Per Verta: Without question.
Offstage: Another question from the internet is “What other industry pays for your medical requirements before you can work, with no guarantee to work?” Are there any other industries, does that make sense? So what they’re asking is if there’s any other industry where your employer pays for your medical treatment before you even work, with no guarantee to work?
KAREN TYNAN: I don’t think so, and I think that one thing to remember about a lot of performers is that, first there are some production companies that do reimbursement, also some performers, many performers are their own corporations, so when they’re hired to do a scene that corporation sends a contract as an independent contractor. And so there is no employer/employee relationship. And the reason that the test is a reasonably priced test is because we’re able to say to these labs “Look, we have over 2,000 performers, they’re going to test every 14 days, do you want the business or not? Do the math” And we’ve been able to keep the prices very low, we’ve got like a what, is it a two day turnaround? Is it two days for you?
Per Verta: Next day.
KAREN TYNAN: Next day turnaround. Try that with Kaiser.
JIZ LEE: I do that with my LLC, there’s also reimbursement from Free Speech Coalition and a number of – well I actually yet to pursue it myself because I shoot less often than many active performers and I don’t mind covering that cost when needed, but if I wanted to I could pursue having reimbursed by the Free Speech Coalition and therefore I would have that money paid back.
Per Verta: They do, they have a system I think you can sign up for so now they are giving us e-checks and they will subsidize a percentage of each test. So like, you’ll get a check every two months I believe it is, for however many times you tested in the past two months.
JIZ LEE: And the last time I worked with larger companies, the last three times they each reimbursed my tests.
Offstage: So if this law passes do you think studios will see the increase in the general public coming in to get a test, for a medical test? For free? Since they’re providing free insurance, basically.
Per Verta: I don’t think that’s gonna work!
Offstage: Well it’s gonna be the law, so would there be an increase if people know that that’s where you can go get tested but you don’t actually have to work?
Per Verta: Well, I mean, you can say that it’s the law but I don’t understand how that would even be implemented, so that’s just-
Offstage: Well that’s what we’re here for, that’s what’s going to happen, we don’t have a choice, right?
JIZ LEE: I feel like they would determine the performers they’re going to work with first, before the testing would happen. So if you wanted to become a performer simply for testing… [laughing]
ALEX AUSTIN: You’d have to audition quite a bit, just for testing [laughing]
Offstage: But isn’t it testing and a medical exam? Isn’t that part of it?
KAREN TYNAN: Well that’s the interesting part I think Prop 60 references ‘whatever exam may be required’. It has some vague language. And I think too, that other part to bring up is the vaccinations, right? So, the way Prop 60 is worded it creates ambiguity in my mind because can I as a production company hire someone that is in the middle of their vaccinations, that still has a month to go? And do I have to pay for them if I think I might work with them next month, for their vaccinations? What do you think?
ALEX AUSTIN: Utterly and completely vague. There’s no way to interpret that at this point.
JIZ LEE: Correct me if I’m wrong but I think I saw herpes listed as well, which – I mean, something like 90% of the population has? [The rate of infection is 90%; however percentages within populations vary.]
Offstage: So is it saying that you can’t work if you have herpes?
JIZ LEE: Possibly.
KAREN TYNAN: It’s so vague.
Offstage: What if you’re HIV positive? Can you work?
KAREN TYNAN: We don’t know.
JIZ LEE: Well that would be discrimination.
KAREN TYNAN: Because here it references STI testing but it doesn’t say what you do with them, it doesn’t say how it works, right? And so that is one of my concerns, and that the case that AIM had, and part of the reason that we really protect the informational privacy of performers is because there is medical information. And so if you look back historically, in the 90s even just having an HIV test could be shaming because then it meant that you might have been promiscuous, right?
ALEX AUSTIN: Absolutely. And put yourself at risk.
KAREN TYNAN: And so the idea that this is going to be implemented, we have no idea what kind of testing is being contemplated and we also don’t know what – does this allow two HIV positive men to perform together? If someone was HIV positive would they have to keep getting tested for HIV every two weeks as part of the panel? I just don’t know. I know that for the vast majority of performers the past panel works and this substitutes some kind of vague, amorphous other thing.
ALEX AUSTIN: And I think the fact that AHF didn’t look at the past panel and look at how it’s done in the industry and created a completely different way of going about this proves in essence, on its face, that it’s not really interested in the safety of the performers. It’s interested in its own power.
JIZ LEE: And the fact that an injured performer, someone who, say they did contact HIV on the set, they could still be sued even if they were injured on the job.
KAREN TYNAN: Right, there’s no exception for an injured worker. And you guys need to recognize too, especially the listeners out there and the viewers out there, this would be the only industry where you could sue workers. Sue into the workplace. We have a workers compensation system, we have a civil system, we do not allow you to sue a worker in this way in any other industry. You cannot drive by a construction site, and you see an unguarded saw, and then you get to sue the worker and the general contractor and the sub. Who would do that?
ALEX AUSTIN: Right. I mean it’s complete and utter insanity. Because again, this idea of deputizing every single Californian is, quite frankly, one of the most dangerous tools that I’ve ever come across in legislation in the well over 20 years that I’ve been practicing law.
JIZ LEE: I saw a question before the panel started that, just in talking about how this could pertain not only to porn/adult film workers but also to anyone who might have filmed their own sex tape, right? So we talked about, like, revenge porn and the idea that if you’re sharing privately within, say, someone has a private Facebook and they decided to be cheeky and share some sex videos with some friends – if that were to be leaked, could people who aren’t even in the adult film industry be held liable for shooting condom-less sex?
KAREN TYNAN: Well that’s the trick because the way these definitions work it’s unclear. If you’re not contemplating, at the time you’re creating the content, that you’re going to do anything with it and then a month later you’re sitting there thinking “Damn, that was hot. I think I could make some money off of this”
ALEX AUSTIN: If I do anything with it, at least financially.
KAREN TYNAN: Yeah right. I’m going to put it on Clips4sale, I’m going to make some Christmas money. But at the time you weren’t contemplating that it was being made for this and let’s say that you made it for, with you and your husband and you’re going to share the money. So you’re both going to be financially compensated, you didn’t contemplate at the time. What do you think Alex?
ALEX AUSTIN: Oh I think they’re going to say there’s no exception. There’s no exception for that, you’re included. As soon as there’s a dollar involved you’re included. And I’m not desperately confident that even if there’s no dollar involved that someone, one of you deputies out there, can see this and say “Oh, I’m going to go after that couple”, even if they’re not making money out of it, it’s on a free amateur site, and you still have to defend yourself. The double edged sword of the justice system is that anybody can sue anybody for almost anything. Doesn’t mean you can prove it, but it does mean that if you’re sued you have to defend it, one way or another. And frankly that hurts everybody I suppose except the lawyers, but it’s horribly, horribly unfair and unjust.
JIZ LEE: (pointing to AUDIENCE MEMBER with question) Yeah.
AUDIENCE MEMBER 1: I apologize if this was already covered, I might have missed it, but when you were talking about the process by which the process – the complaint process, you mentioned the initial – if I remember right – the initial act by the bystanders who send the videos to AHF or to OSHA directly. Is there any kind of regulation or contemplation – I’m thinking of patent trolls who just go out and sue for everything –
KAREN TYNAN: You’re right, this could be a great business model.
ALEX AUSTIN: Very good point.
AUDIENCE MEMBER 1: So if OSHA were overwhelmed by people sending in millions and millions of videos, would they have to process all of those claims?
KAREN TYNAN: Well the way Prop 60 works is that if CalOSHA doesn’t respond within 21 days, or it responds that it’s not going to pursue it, then you have your right to go into court. So if I was going to be really clever, I’d submit something on December 15th and figure that there are going to be a lot of people on vacation and I’d get my 21 days that way. Is that what you guys think?
(Collective “Mmmhmm” from panel and audience)
KAREN TYNAN: Or, if they come back to you and say, “I don’t see anything”, maybe for good reason, like they say, “God, this scene looks like it’s a four-year-old Treasure Media scene or a four-year-old something or other,” then you can still go ahead and sue, even if CalOSHA has told you “There’s nothing here.” So that’s the mechanism. It’s 21 days and I want you to know that that is a very quick turnaround for an investigation. In other private attorney general acts, clauses in the labor code, wages and things, there’s a much longer timeframe. And typically a three-week turnaround for an investigation for CalOSHA is unheard of.
REPORTER: (surprised) Wait. Can you clarify what’s this 21 day thing you’re referring to?
KAREN TYNAN: If you make a complaint CAL/OSHA. (jocular tone) Are you a lawyer that’s gonna do this for money?
(Laughter from panel and audience)
REPORTER: Just a reporter trying to get everything right and this is new to me.
KAREN TYNAN: Okay, 21 days in those 21 day if CAL/OSHA says either “No I’m not going to pursue this, we don’t find a violation or were choosing not to pursue it.” or if they don’t answer you. You get to file your lawsuit. You don’t get to file your lawsuit if CAL/OSHA says “yes we’re moving forward” So there’s only really one way to not (file suit) and that’s if CAL/OSHA initiates an enforcement action. It’s not even a investigation it’s an enforcement action.
Per Verta: Which they then have 45 days to file action on, before you can file a lawsuit.
KAREN TYNAN: Right, it’s super quick turn around.
AUDIENCE MEMBER 2: Who’s prosecuting? I mean if you are the whistleblower?
KAREN TYNAN: You’re gonna have a attorney. That’s gonna be billing for $350/hr.
AUDIENCE MEMBER 2: From who? Assigned by the state?
KAREN TYNAN: No you’re gonna get one of these contingency guys or AHF lawyers. What do you think Alex?
ALEX AUSTIN: Yeah i think it’s probably gonna be less we’ll how it all shapes out but less the 350$/hr and more the contingency. Which mean you don’t pay the lawyer anything unless they get you money. So you’ll potentially get your 25% and the lawyer will get anywhere from 33-40% of whatever you get based on them winning for you. Now one of the things this made me think about in terms of trolls. Is that if the trolls are out there watching and they were smart they would absolutely overwhelm CAL/OSHA with complaints. Because there’s no way that if CAL/OSHA were overwhelmed that they would be able to do this 21 day turnaround. It would be impossible for them to really comply with Prop 60 and then once those 21 days are over and said nothing because they couldn’t get to it all then potentially you can just go ahead and file your lawsuits.
AUDIENCE MEMBER 3: At the beginning of this you mentioned that Prop 60 had two incarnations before it went public is that true?
KAREN TYNAN: There were two bills in Sacramento put forward by Isadore Hall out Los Angeles and those bill failed in Sacramento and so the AHF did this proposition process.
AUDIENCE MEMBER 3: Okay, so if it moves forward and next Tuesday is does not pass. There may be a proposition a 4th time around. So can you think of anything moving ahead that the industry can do to try and work to prevent that? Try to circumvent that? Because you also compared this little bit to the constant attempts to shut down say like Planned Parenthood and there ultimately has been successful in some places with devastating results.
ALEX AUSTIN: I mean I think everyone wishes that AHF would work with the industry instead rather than against the industry the fact that they absolutely refuse to even have a conversation with people from the industry is very telling.
KAREN TYNAN: Yeah, I think that moving forward we got January 31st date for the stakeholder meetings. We’d like to get industry specific regulations moving forward. Also, I think taxpayers and donors need to look at AIDS Healthcare Foundation and tell them to “knock it off”. For Michael Weinstein to spend 4.5 million dollars on this. What could some these nonprofits in San Francisco do with 4.5 million dollars?
DR CAROL QUEEN: (resounding) WOOOOOOOOORD!
(Laughter from panel and Audience)
ALEX AUSTIN: They could actually protect donors. That’s what they could do.
KAREN TYNAN: If somebody can do the math. If you had 4.5 million dollars and you divided it by the cost of the test. How test can you do for performers? And counseling, treatment, or anything they wanted or need. Pap smears, vaccinations, but that’s not their bet. And i think the public and the donors and the cities they give AHF contracts with the Ryan White funds need to tell AHF “Look you got a mission to treats HIV patients that’s your mission that your nonprofit mission and the rest of this needs to stop.”
ALEX AUSTIN: And I think that’s something very interesting in terms of potential legal ramification is really look at AHF mission and see if what they’re doing with regard to the adult industry veers from their mission and potentially have someone litigate for them who know maybe they will lose their nonprofit status there could be all sorts of things but i think it’s very tough in an industry where people are always fighting some sort of fight. There always a battle to be fought in the adult industry and taking on somebody like AHF with the enormous amount of funding they have.
KAREN TYNAN: Yeah a billion dollar budget. Biiilllliion
ALEX AUSTIN: Right a billion. But you never know it could happen maybe we should start that pact right here.
JIZ LEE: Alight so pinky swears, after we defeat it. So, we’re gonna wrap up and talk about some actionable items on what to do in final five -about four – days left ‘till the election. If you did sign the paperwork we’ll follow up with an email that will give you some these links, addresses, and contact information. The Free Speech Coalition is organizing a bunch of Famers Market canvasing that’s gonna be happening in the Bay Area at a number of places in the next couple of days. So if you’re interested in that there’s a signup sheet and we can also email you that information again through your contact.
DR. CAROL QUEEN: Please sign the CSC list as well, it’s not the same one.
ALEX AUSTIN: Yes please sign the Center for Sex and Culture list as well.
JIZ LEE: To continue to press online information there’s a bunch really great articles that have come out recently that are really great ways to explain what going on please share those. We were telling earlier to tell five friends who aren’t in adult industry and ask them to tell five more. I have a example letter that the author willing to have anyone copy and paste, she’s not in the adult industry, she sent it out to her professional email list and got a really great response from it. That kind of allyship is exactly something that we need. So I can include that in the email that will be sent out. So you can just copy and paste it, ask people to share it online, email it to people, post it on social media. Every vote is gonna matter in this election.
ALEX AUSTIN: Well, people are asking me, ‘What can I do?’ and I keep telling them, stop talking to each other. Start talking to other people. Talk to your parents, talk to your in-laws, talk to your friends, talk to your Lyft driver, because I think that the overall conception of the bill is ‘well, what’s wrong with condoms?’ so we immediately have to overcome that perception and tell people that there’s nothing wrong with condoms, there’s something wrong with the bill and that’s a very hard sell for some people, so that’s my advice if anyone wants it – quit talking to each other, start talking to other folks.
KAREN TYNAN: I agree, and I’ve got two points. First of all, for those of you who want to get out, you can direct message Siouxsie Q, she can give you materials, and I talked to our lobbyist in Sacramento – we need to be hitting social media hard. This is a message that resonates. Because of the way we’re writing about it and the power of performer voices, and some of the great articles that have been written, the Op-Ed pieces, the editorial boards, and reaching out to get out of your social media circle to share it in a different way, really there should be a big push on that this weekend sharing Op-Ed’s, editorial boards, and performer voices pieces.
per VERTA: I feel like I don’t have anything to say because you guys covered so much. I would be as vocal as you can on social media, talking to people you may not feel comfortable with, and just really push. It’s not about condoms, performers don’t deserve to be harassed, this is going to devastate an industry, an actual, legitimate industry, and potentially drive it underground, delegitimize it, and criminalize a lot of people’s livelihoods.
JIZ LEE: Go to the APAC website to see the performer’s Bill of Rights and other things that we’re doing.
ALEX AUSTIN: If anyone has questions, who’s in the industry, who’s not in the industry, I’ll leave some business cards there and I’m always willing to be of some free advice, because my mission is to make sure everybody knows their rights, and if push comes to shove and you need to know something, just give me a call and I’ll be available.
JIZ LEE: And on your way out, there’s a bunch of pamphlets, bracelets,
MATT MASON: We made backpacks! Give it to your friends, give it to your church, the vote no on 60 bracelets, and we’ve got pamphlets and some snacks.
ALEX AUSTIN: Thank you, Matt.
JIZ LEE: When somebody wants to give me a flyer about something, I say “trade ya”. Thank you everyone.
ALEX AUSTIN: Thank you Jiz, and Carol, and everyone who put this together. Thank you.