How hardcore do we want to be in policing porn?

For as long as X-rated entertainment has existed, it has exploited the vulnerable and troubled. So we sympathize with the intentions behind Proposition 60, which would crack down on unsafe sex in the production of pornography.

Unfortunately, this initiative is a bit like its Los Angeles-based proponent, activist Michael Weinstein of the AIDS Healthcare Foundation – well-meaning, but so litigious that even sympathizers are unsettled. Most mainstream AIDS organizations and both major political parties in California oppose it. So must we.

Weinstein does raise worthwhile issues. Producers, not performers, should bear the cost of tests for sexually transmitted infections. And condom use is not too much to ask from an industry that routinely exposes its workers to sexually transmitted diseases, some of which can kill them. That’s why rules mandating protection against blood-borne pathogens on adult film sets have been in effect here since 1992.

The California Division of Occupational Safety and Health is tasked with enforcement. But California’s porn industry is so fragmented and furtive that policing it increasingly has been a goose chase, demanding an outsized commitment from staff members who must watch over many risk-prone lines of work.

Proposition 60 arises from understandable frustration with that situation; its solution is essentially to litigate the adult film industry into compliance with condom rules. If voters were to approve the measure, and Cal/OSHA declined to pursue a reported violation within 21 days, the complainant could file a civil suit against anyone with a financial stake in the production and take a cut of the proceeds. But surely we aren’t so far gone that we want to offer bounties and invite frivolous lawsuits.

Lawsuits can be useful when regulation fails. But the best estimates put the California porn workforce at only around 2,000 people, who increasingly work not at studios but for themselves, posting their products on websites. Though enforcement isn’t what it should be, since 2004, Cal/OSHA has hit porn producers with more than 145 violations; in March, acting on a complaint from AHF, the production company of porn star James Deen was fined $77,875 for failing to use condoms, among other things.

Regulators are working with the industry and AHF to formulate comprehensive, updated safety regulations. This is beyond overdue, and they need to get busy. Producers and distributors, not performers, also should pay for more meaningful STD testing, as the measure suggests.

But an all-out war, in the courts and by the state, on an industry that operates at the fringe could drive performers further underground and make them less safe. It has been 12 years since a new HIV/AIDS case was documented on a porn set, and new cases in general in California have been declining for 15 years.

Proposition 60 raises red flags with another provision. In its fine print is language AHF says it needs if the initiative wins and is challenged but the state fails to uphold the voters’ will and defend it in court. In such a case, Weinstein would be sworn in as a state employee with standing to defend the initiative himself, and he couldn’t be fired without a majority vote of both legislative houses. Oh, and the taxpayers would be on the hook for his legal expenses.

Other proponents don’t write state jobs for themselves into their measures. Proposition 60 is overreach.

This story was originally published September 12, 2016 at 4:18 AM with the headline "How hardcore do we want to be in policing porn?."