The opinions, beliefs and viewpoints expressed by the various contributors on this web site does not necessarily reflect the opinions, beliefs and viewpoints of AdultBizLaw.com and Michael Fattorosi nor should they be considered legal advice.
Reprinted with permission. As first published on September 12, 2012 at http://aliajanine.com/2012/09/12/why-i-think-we-have-the-right-to-choose/
This is something I wrote back in June of 2011 after attending one of the Cal/OSHA meetings. I didn’t have my awesome blog that I have now so I posted it in different forums like Adult DVD Talk and FreeOnes.com. After this meeting I remember feeling very disturbed by Cal/OSHA and the AIDS HealthCare Foundation as a whole for even fathoming trying to control something like the Adult Industry the way that they wanted too. I thought they were crazy fascist, that this couldn’t be happening in this day of age, in America nonetheless, I still do.
I wrote this after looking up state statues, laws, and Supreme Court rulings trying to find some answers that I knew were there. I was more concerned for the complete disregard of our First Amendment rights then the debate on if we were independent contractors or employees, as you’ll read. But after some more research, talking with my buddy Michael Fattorosi, and a little common sense I couldn’t really fight the fact that performers are not independent contractors. At the time it seemed like a logical explanation to me (and everyone else) because that’s the reason Cal/OSHA was involved. If we weren’t “employees” they could never regulate the way they wanted to, but we are employees and they can regulate, but not to the extreme measures that they want. Anyways, this what I had to say over a year ago…..
Written June 10, 2011 5:16am.
*Yesterday I attend the Cal/OSHA Advisory Committee Meeting on barrier control protocol in the Adult Industry. Now if any of you have been following this story in the news you should know what’s going on. But, for those that don’t here’s a short briefing; Cal/OSHA came up with a 17 page draft of proper barrier controls, definitions, and procedures for the Adult Industry. Mind you, barrier controls have been in place since the early 90s but due to recent events and formal complaints from the AHF they’re stepping up enforcements and trying to make new regulations.
Why does Cal/OSHA get to regulate what happens on a porn set like they can a hospital or construction site? Because apparently all adult performers are consider “employees” and all production companies “employers”. We’re consider “employees” because of the state’s definition of what an employee/employer is. Regardless, if performers are incorporated within themselves, pay taxes as a self employed person or business owner, or the fact that most performers work with multiple companies. You need to understand that if we were considered independent contractors, as many of us consider ourselves, they would have no control over what we do on a porn set. All they have is the states definition of what an employee/employer is.
There’s so much more that goes with that but that’s not what I want to discuss. Because honestly, even with the states definition of an “employee” I still believe they are in violation of our 1st Amendment right to free speech/expression.
Let’s start from the very beginning-
- Our 1st Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law “respecting an establishment of religion”, impeding the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.
- Pornography fits under freedom of speech and freedom of expression. It clearly states that it includes sexual expression.
- The state of California defines hardcore pornography as; Hardcore pornography commonly includes explicit depictions of sex acts such as vaginal or anal penetration, cunnilingus, fellatio and ejaculation and/or extreme fetish acts.
- The Supreme Court ruling in California VS Freeman in 1989 legalized pornography. (With the states definition of what pornography)
- Our 1st Amendment also states that: “federal and lower government may not apply “prior restraint” to expression with certain exceptions such as national security and obscenity.”
- It is not obscene to show genitals in sexual acts. We have the Miller VS California Supreme Court ruling (The Miller Test) to prove that the majority of what we do is not obscene.
- Prior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known. Prior restraint prevents the censored material from being heard or distributed at all; other measures provide sanctions only after the offending material has been communicated, such as suits for slander or libel.
So if Cal/OSHA is forcing us to use any and all types of barrier protection, how is that not censoring us from being able to fully express ourselves sexually? Also, how is wearing barriers not forcing us to produce and distribute fraudulent products? Can it also be said that they are in violation of the Due Process Clause of our 14th Amendment? And of our Universal Human Right Laws? Considering that everyone in Adult Industry that was at the meeting got shut down anytime we brought up valid disputes or ideas against/for their proposal, I would say yes. They were unfair, unrealistic, and have absolutely no idea about how our industry works and they don’t care.
My thoughts; I don’t care if Im consider an employee or not. I know that my 1st Amendment right gives me the right to sexually express myself, in the legal state definition of pornography. By forcing me to use barriers they are violating my rights by censoring me and not allowing me fully express myself in the way that I want to. And by not allowing me and other industry members to have any say with what we can do with our own bodies, sexual expressions, our income, and our livelihood, is denying us Due Process.
I got everything from Wikipedia. So, if I can spend a few hours online doing some research and can find all of this, why is Cal/OSHA (and we’ll even throw in the AHF) still so hell bent on ‘protecting’ our industry? Well to me and many other industry members, they are being discriminatory against our industry for what we do. With the law clearly stating we’re in our legal rights how are they not?*
To me it’s not about having to wear or not wear condoms, it’s about having the right to choose what we think is best for OUR bodies, OUR expression, OUR livelihood. Yes, I believe that everything needs to be regulated to a certain extent, I think that there needs to more rules set into place (like requiring everyone to get the proper vaccinations if applicable), I think there needs to be more education about STIs (EVERYWHERE), but trying to force and control something upon anyone the way the AHF is trying to impose on the government to do to the Adult Industry is just plain Un-American to me.