Attorney for Measure B Proponent Admits First Amendment Problems with Mandating Condoms in Porn

While Measure B proponents, AIDS Healthcare Foundation, continue to deny publicly any First Amendment free speech ramifications to LA County ballot initiative Measure B, which would force all adult productions to use condoms, an internal memorandum sent by AHF’s Counsel to the organization’s president, Michael Weinstein, and 25 other AHF executives indicates otherwise.

The memorandum, written by Assistant General Counsel Brian Chase, clearly warns of potential First Amendment problems with AHF’s mandatory condom ballot initiative, which would force adult movies to include a pro-condom “safer sex” message.

Subject:Ballot Initiative Messaging
From:Brian Chase
Sent:
Monday, August 15, 2011 3:53 PM
To:
Timothy Boyd; Michael Weinstein; Michael Kahane; Tom Myers; Whitney Engeran; Dale Gluth; Philip Reh; Eileen Garcia;
Jessie Gruttadauria; Jessica Reinhart; Joseph Terrill; Azul Grasso; Sal Guillen; Denys Nazarov; Arlette Delacruz; Herbert Fisher; Jason King; Ged Kenslea; Lori Yeghiayan; Omonigho Ufomata; James Vellequette; James Driscoll; Adam Ouderkirk; Sarah Fohl; Miki Jackson; Mark McGrath

We may want to avoid saying that one of the reasons we are supporting the ballot initiative is because we believe that
condom-less porn sends any sort of message (that only safe sex is hot, or that condoms are unsexy).

As a private actor AHF can argue generally that lack of safety practices in adult films sends a bad message about sex.
But as proponents of a ballot initiative, anything we say can be used to determine the “intent” behind the initiative. A law whose “intent” is to require film producers to “send a message” about safer sex could violate the First Amendment.

Brian Chase
Assistant General Counsel
AIDS Healthcare Foundation

The memo was apparently prompted by Michael Weinstein’s public statements, as well as private several statements later made public, concerning the “message” he claims is sent by condomless pornography, and how this message needs to be addressed by legislation.

In January 2011, Weinstein wrote, “we think that the porn industry is doing a terrible disservice to society in general, and young people in particular, by saying that the only kind of sex that is hot is unsafe.”

Then, on August 2, less than two weeks before the Chase memo was issued, Weinstein told the media, “I think the message is going out to people, particularly young people, that the only kind of sex that’s hot is unsafe.”

However, the Chase memo did nothing to sway Weinstein, who has continued to repeat the same claims. In March 2012, he repeated his position in a Huffington post Op/Ed piece, writing, “The fact that most straight porn is made without condoms sends a horrible message that the only kind of sex that is hot is unsafe.”

Only yesterday, Weinstein said, in an AHF press release, “We are confident that voters will see through our opponents’ false claims—about free speech infringement,” and called a “falsehood” the idea that “that condom use in the films infringe[s] upon the free speech rights of the actors.”

REMEMBER TO VOTE NO ON MEASURE B