It's illegal to eat, smoke or kiss in movies, but no-one cares--at least until November
"These bitches all want to fuck me but none of them want to sleep with me,"--this is Ela explaining how all her Bay Area hook-ups have let her down and so we have to impose on my cousin. While this presents challenges (Which of these things is soap? Which of these fixtures makes it be a shower? Why is there no full-length mirror?) the main one is entirely of my own making and it's pants. Specifically that I only own two pairs: one for wiping paint on, the other for Twiggy Ramirez's wedding.
"Business drag is hard," my cousin says. She's a very earnest documentary filmmaker who has--seemingly effortlessly--figured out how to wear navy blue. She is miles ahead of me, but eventually I find out a black pullover I brought that ends in ratty fingerless glove things not only matches the wedding slacks but actually looks like a normal sweater if you roll the sleeves up. Meanwhile the cum stains on the dress Ela wore one of those times she played a slutty businesswoman are definitely mostly not visible, at least at TV distances. Outside there's a truck parked right up against the only car door that works, but Ela used to be a contortionist so we're good there, too. We are grown-ups, we totally belong here in Oakland, discussing record-keeping protocols and barrier protection from bloodborne pathogens in front of the California Occupational Safety and Health Administration's Standards Committee. We'd better be, because no-one else cares except the ACLU, and they'd defend Hitler as long as it was about a movie. Ela doesn't know how to use Google maps but I do, I break the home button on my phone but she fixes it. We are weak and dumb but strong together maybe I hope probably.
Security at the State Building is heavy but polite, and a handful of reporters and pornographers are already in the lobby.
This hearing could've come at a worse time for the porn community, but not by much. The fall of James Deen (accused rapist and former Only Normal Porn Guy) was a gut-stab not only to whatever shred of credibility modern porn might've had in the eyes of normals but also to the ordinarily collegial (or at least summer-schoolial) relations between people within Adult. He was crazy and stupid and threw things at people, but even James had friends.
But it's time to lay these things aside--in the tall clean lobby of the Harris State Building Auditorium, in our business drag, we all like each other. Today I like that girl with the hair who said that thing on Twitter and the one who, on our first date, fucked that other guy in the bathroom--because the alternative is rubber-glove handjobs.
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No-one else cares except the ACLU, and they’d defend Hitler as long as it was about a movie.
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The rep from the Free Speech Coalition tells us to say "Worker" a lot instead of "Performer". We're here to Public Comment at Cal/OSHA and their job is workers. They're not supposed to worry about safe sex in porn as a public health education issue, as an economic issue, as a free speech issue, as a moral issue, as a Please Don't Make Us Move To Nevada issue, or as a What Kind Of Culture Do We Want To Promote issue--they only worry about the chance of STD transmission from performer to performer on set.
The people who are supposed to worry about all these other issues are the people of California, who voted the measures we've driven all the way up to Oakland to complain about into law way back in 2012.
If you're confused about why we're here now that's because it's confusing. Ela explained it on the drive up:
"These are already on the books, but it's about whether Cal/OSHA changes their rules."
"Wait you mean the vote is whether OSHA's rules are changed to match what the California law already says?"
"Yeah, because it's an enforcement issue."
"You mean like because the cops have totally not handled it, is it Occupational Safety's job to handle it?"
"Basically yeah."
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…the alternative is rubber-glove handjobs.
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So like the people of California could decide that you don't put Nilla Wafers in someone's butt, but it's only an occupational safety problem if OSHA votes 4-to-1 or more that it should be and you do it at work. We're not here to stop the law, we're here to stop these five people deciding they care about about it: I scrap my first-draft plan to buy a banana and a box of magnums to show them how easy it would be to make a safe sex video to append onto the beginning of every adult film, and start thinking about what will form the central mystery of the next six hours: what does Cal/OSHA really care about?
They care about procedures for lifting furniture without muscle strain and the proper installation of skylights and they care about saying the Pledge of Allegiance--which we all stand and do with "under God" and everything. These are the first three pieces of business. They care about order and the guy in the middle actually has a gavel. If they care about clothes we've already won--one of the guys the AHF has paid to testify against us has a shaved head and a flamingo suit and even I know you don't go full Miami Vice in front of people who think about girders for a living.
The committee itself went for, L to R: charcoal with dark red tie, light grey with grey-patterned tie, burgundy, black with dark tie, black with cornflower blouse, black. It is old, white, and gender-balanced (kind of, the committee seems to have sometimes five and sometimes six members). The women are reserved--the one furthest from the podium never moves, the penultimate one's face is almost as poker, but she is capable of smiling to acknowledge that a speaker is nervous or tried to make a joke. The three men give off the casual, uncomforting warmth of a date's dad. They sit in front of an analog clock, an American flag, and huge blue screen that says "Press Ctrl+Alt+Delete to logon" and nothing else all day long.
The Pledge makes it feel like school, and it only gets schoolier from there--with the schooly air of windowless mornings and public employees full of bad lunch making judgements. It is rare, in grown-up life, to sit embanked with friends and dozens of friends of friends in a sloping auditorium and try to seem worthy to a pack of blazered elders. The process inspires--through no fault of any human participant--contempt, boredom, and a strangely totalizing fear: the process not wanting you feels very much like the world not wanting you.
As if to underscore all this, the first member of the public to speak--a housekeeper--sounds exactly like an insect in a machine. They try to fix the microphone but they can't. We're all going to have to yell.
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The process inspires a totalizing fear: the process not wanting you feels very much like the world not wanting you.
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After about a half hour of social realism about cleaning hotel rooms and the dangers of cutting holes in roofs, our regulation comes up and a thick, steady stream of porn stars begins: Nina Hartley, Joanna Angel, Jiz and Lorelei Lee, John "Buttman" Stagliano, all saying vote No and interrupted only by a lone woman who used to work for OSHA named Deborah Gold. Deborah Gold went early because she was ill, and went at all because she was incredibly angry.
Deborah Gold's shirt was plaid, and her eyes were grim with purpose. I would like to try to communicate to you the precise quality of Deborah Gold's anger:
Have you ever been on a bus or a bench next to two co-workers who are, to the absolute limit of human witness, disgusted by the fact that the public they're paid to help weren't born knowing how their job works? Like…
"And he comes up saying 'Can I send it Premium?' And I say 'Premium? You can send it Premium Plus Night Courier if you put the damn QT tag on it!"
"Oh I know. I just shake my head."
…anger that someone else might not know the obstacle course that wallpapers their weekdays--or maybe underneath an envy-born anger that they don't need to know. The anger of bureaucratic Stockholm Syndrome.
Deborah Gold was angry that we had all appeared now, so late in the process, when there had been so many opportunities for our input previously. Where were we in March? Where were we in Sacramento? It seemed very strange to yell at some porn stars for your own agency's total failure to communicate its process to them, but there you are. That was the anger of Deborah Gold.
Imagine that kind of angry. Now imagine that quality in a quantity communicated so intensely to a line of people waiting in line against a wall to your right that one of the former co-workers seated to your left has to interrupt you and politely say "Excuse me, you are supposed to be talking to us" and so inviting a round of applause at the taking down a peg of Deborah Gold so long and so intense people actually hurt their hands.
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It seemed very strange to yell at some porn stars for your own agency’s total failure to communicate its process to them.
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This anger is difficult to imagine. This person is difficult to imagine. Imagining people--as human, as real--is the big thing here. The Standards Committee would never say its job is to judge whether we are human or not, but it is.
If something on the internet tells you its definitely worth upgrading to an iPhone 6, you first find out if it's human or not. If it's not human, you'll probably feel comfortable ignoring it--it's its job to tell you that. Porn stars are used to being treated like they might not be human in this sense--there is no opinion a porn person can express that is so ordinary or so obscure that someone won't accuse it of being part of a brand management scheme while sending you a picture of their dick. And if you don't like that its because you just want attention.
This is true for a lot of aboveground famous people too, of course, but most of them have the compensating and relevant-here advantage that their fans don't think they're idiots. Because once you decide whatever's recommending the iPhone is human, you then have to decide if its stupid--and if it's stupid, you still get to ignore it. It's just repeating what it heard before, it clearly just drank the Kool-Aid. It might as well not be human.
If we are both intelligent and people then the few broad things we have time to say in our two minutes each in front of the board can be considered condensations of first-hand experience and genuine thought and it becomes relevant that while most of the time Cal/OSHA is arbitrating between employees who want more regulation and employers who want less, in this case it's arbitrating between an entire industry that wants less and a bunch of people who didn't do their homework who want more.
In these battles to be seen as real and sentient respectively we have two advantages: porn stars can't act, and a fuckton of them have advanced degrees. The ones who studied law, medicine or public health go first which, in itself, might be communicating something the committee didn't know: these are people who had other options. And then there's the constant hugging and crying, which everybody knows robots don't do.
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There is no opinion a porn person can express so ordinary or obscure that someone won’t accuse it of being part of a brand management scheme while sending you a picture of their dick.
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The other major imagination problem in the porn safety controversy is it's difficult to imagine the people on the other side being driven by anything but the purest motives. In fact, the entire situation requires wrapping your head around AIDS Healthcare Foundation head Michael Weinstein, a man both:
-driven to advocate against the spread of HIV
and
-pure evil.
The Advocate, HIV Plus Magazine and the SF Weekly have all come out against him. Peter Staley, AIDS activist and protagonist of the documentary How To Survive a Plague once told Slate: “If there’s one thing that every AIDS activist knows, it’s that Michael Weinstein is not an AIDS activist. Yes, he’s the CEO of the ‘largest AIDS organization in the country’—based on revenue—but from the get-go, his tactic for building this empire has been taking contrarian positions that assure his placement in almost any article that appears about the latest HIV/AIDS debate.”
The one guy campaigning against the anti-AIDS drug PrEP? That's him. Those billboards linking Grindr to Gonnorhea and Tinder to Chlamydia? That's him. The name that keeps coming up in lawsuits where AIDS organizations are entangled with kickbacks and corruption? That's his. A world where even an AIDS activist can't be trusted is a shitty and depressing one, but its ours.
The AHF's dishonesty is one reason the rules are so easy to argue against: they aren't just wrongheaded but half-assed. The AHF's legislation protects porn performers about as much as an old man's hucked brick protects the rowdy kids he throws it at and it's no more precise because both were launched for exactly the same reason: to get the target off the lawn.
Weinstein's notorious Measure B (a major contribution to the current round of official badgering, currently applicable to Los Angeles County but likely to be cloned for use all over the state in November) consists of two parts:
One part demands "adult film producers" take a blood borne pathogens training course and otherwise follow a lot of record-keeping and licensing requirements all while failing to define "producers" or even, really, "adult film".
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A world where even an AIDS activist can’t be trusted is a shitty and depressing one, but its ours.
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The complexity of "producer" can be illustrated by a simple example from what is by far the most common pornographic performer-distributor relationship: a girl fills out a page a little longer than a Tinder profile, uploads a few pictures, then logs onto MyFreeCams or Chaturbate or IMLive or some other girl-aggregator and proceeds to masturbate for tips. Now the IRS calls this an independent contractor--but the origin of all our woes is that OSHA doesn't define these words the way the feds do. We are all someone's employee to OSHA and the law only cares about "producers". Is the girl the producer, or is it the site that carries her? If the girl's in California but the site's servers and staff aren't, do they have to keep the records? Is eBay a producer if you sell a home movie on it? What if--in another common scenario--a lone pervert commissions a custom video of a specific sex act? Is said pervert then enjoined to take a blood borne pathogens course and entitled, by dint of their new status as record-keeping producer, to learn their favorite porn star's given name? No-one knows and the AHF doesn't care--any resulting lawsuits won't be against them.
…and nobody in the room even knows what a porn movie is:
An "adult film " is defined as
…any film, video, multimedia or other representation of sexual intercourse in which performers actually engage in oral, vaginal, or anal penetration, including, but not limited to, penetration by a penis, finger, or inanimate object; oral contact with the anus or genitals of another performer; and/ or any other sexual activity that may result in the transmission of blood and/or any other potentially infectious materials.
…so When Harry Met Sally is a porn movie: people having sex is represented, and people are shown orally penetrating themselves with forks, toast and pie. Any movie ever made where an actor (actually) smokes a cigarette after the character they're playing has sex (whether or not the sex is real)--or even in the same movie as they have sex--is a porn movie. That's the law. And even if the subliterate hatstands responsible hadn't written a sentence where it's unclear whether the prepositional phrase "in which…." is modifying "any film…or other representation" or modifying "sexual intercourse" there's still no way to interpret this law so that Julia Roberts sucking Tom Hanks' finger during a mainstream Hollywood waist-up love scene isn't porn. Let's not even get started on how, in the final clause, "sexual activity" isn't defined, leaving a big question mark over a wide variety of not only fetish films but mainstream films featuring fetishables like spanking, people getting tied up, and cute ponies.
The other part of Measure B does something not just grammatically but legislatively weird: it does not create a new rule but instead just reminds everyone that an old one already exists. Specifically it points out porn sets haven't been following California Code of Regulations 5193 guidelines on the handling of blood borne pathogens in the workplace (meant to apply to all workplaces). This is true: and boxers haven't been following the guidelines about punching people in the workplace.
The migration of concepts from federal workplace regulations into California Code 5193 and from 5193 into Measure B and from Measure B into Cal/OSHA regulation is a masterclass in the way bureaucratic language smothers elemental reality.
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…and boxers haven’t been following the guidelines about punching people in the workplace.
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Let's start with 5193 (b):
“OPIM” means other potentially infectious materials.
“Other Potentially Infectious Materials” means:
(1) The following human body fluids: semen, vaginal secretions, cerebrospinal fluid, synovial fluid, pleural fluid, pericardial fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, any other body fluid that is visibly contaminated with blood such as saliva or vomitus, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids such as emergency response;...
So those are some OPIM--the section goes on to define other OPIM including a lot of things unlikely to come up in any reputable pornography like "Blood, organs, or other tissues from experimental animals". What do we do with OPIM?
Well, first of all, don't touch them:
(d) Methods of Compliance.
(1) General. Universal precautions shall be observed to prevent contact with blood or OPIM.
Second, for god's sake don't make more of them:
(2)...
(D) All procedures involving blood or OPIM shall be performed in such a manner as to minimize splashing, spraying, spattering, and generation of droplets of these substances.
The logical problem should be even more obvious than the legal one: Supreme Court precedent holds it wholly permissable to produce pornography in California, and generating droplets of OPIM is the entire point of pornography. These laws say opposite things--at least in any society where pornography involves orgasms, which is the only kind worth living in. Note also that if, on some romantic, tragic movie beach, a sweating lover should cry, the "difficult or impossible to differentiate" language means you can't kiss away shed tears. In any workplace.
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These laws say opposite things — at least in any society where pornography involves orgasms, which is the only kind worth living in.
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And if that seems like a stretch of reasonable interpretation, consider the refreshing clarity of (d)(4)(G):
Gloves shall be worn when it can be reasonably anticipated that the employee may have hand contact with blood, OPIM, mucous membranes, and non-intact skin...
That says, porn or not, there's no way Julia should be touching Tom's lips or even ears (mucous membranes) without gloves on. The fact that this pretzelled gibberish is consistently labelled the "Condoms in Porn Law" in articles and news spots is a tremendous propaganda victory for AHF. This is a law that nickel-and-dimes-away the depiction of human contact on even the dullest and most Oscar-worthy level, whose only saving grace is no-one who wrote it took it seriously.
The AHF's speakers got applause from exactly one women--whom they brought with them--and who sat in the row right behind me hiding from photographs and eating Kettle Chips which I didn't know you could do in a state hearing. The handful of ex-porn people the AHF paid to speak in favor of the new rules were very hard to hate: they were fumbling and inarticulate, but they were also HIV positive.
My own speech went over well with the crowd but I have no idea if it mattered. The whole process is procedurally frustrating:
First people talk to OSHA and OSHA only listens — saying nothing, then OSHA talks to itself and people only listen — and are allowed to say nothing, then OSHA votes. When different versions of reality are presented, there's no attempt to square them or fact-find. It's like testifying at a trial where you have no idea what the case against you is.
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There’s no way Julia should be touching Tom’s lips or even ears (mucous membranes) without gloves on.
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For example:
There was a great deal of disagreement over whether, since the adult industry stated its current regime of self-imposed testing in 2004, anyone has ever gotten HIV on a California set. One performer claims he did. Another performer, standing at the podium, claims he has a text message on the phone he's holding right now from that very same performer saying he didn't know where he got HIV. Nobody checks the phone. This isn't a trial so facts don't matter.
After a recess they start the part where OSHA talks to itself. It goes on for a few minutes about skylights, then says Aye a lot of times. Then it starts talking about porn.
The back-and-forth makes it clear that the Division hasn't thought about any of the ambiguities in the original law. A woman from the division that wrote the rules says, in an attempt to sound sane and not-criminally-negligent, "We tried to meet a consensus but we can't always do that". They just couldn't, I guess, come to a consensus whether smoking was porn or not.
Grey-with-grey-tie (named Dave) is now moved to make a speech. While it's unclear as to whether it is to us or to his fellow committee members, it is clear that he is torn, that he has registered at least some of us as human, and that his specific concerns are classically daddish. The pair of husband-and-wife part-timers who spoke seem to have got to him--that they might have to wear condoms seems unfair. He said he played football and compared STDs to rules about concussions-- "…but then football doesn't go underground". He trailed off inconclusively.
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They just couldn’t, I guess, come to a consensus whether smoking was porn or not.
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Another of the committee's Daves spoke-- "I'm gonna make a few comments and you guys are gonna be upset". Meaning all of us in the seats. Did the committee already make up its mind during the recess? Things are opaque. He says if they don't vote these rules in now they have to start over from scratch--as if that's a bad thing. If this Dave realizes his sentiments about the inevitability of condoms in porn (condoms: the absolute least of it) are largely the complete opposite of the previous Dave's, he shows no sign of it. Do they just say things so people don't riot? Or are these arguments to the rest of the committee? "People in porn will figure it out!" this Dave concludes--to derisive laughter from the people in porn watching.
The committee doesn't know its own rules--specifically what happens in case of a split vote. Have all their decisions until now been unanimous? One woman has to explain that in anything less than a 4-to-1 the rules will hang unarticulated for one more year.
I turn to see an auditorium full of porn stars rapt now--everyone touching someone, everyone leaning forward, all on the edge of something, biting lips, twisting in their seats, eyes down on the deciders in their swivelling chairs.
Cornflower blouse with the glasses on her gray hair moves for a vote, the move is seconded. She votes Yea to the new rules in a roll-call vote. No one likes her now. Charcoal red tie goes Yea, too. Dave #1 votes to reject. Applause, a pause, tremendous fear, I taste blood in my spit from a fucked-up back molar. And then they call Barbara Smisko--the poker-face, furthest from the podium in all black votes to reject, too. The resolution does not pass.
No-one expected this, everyone screams--I kiss Ela's cheek and she kisses me on the mouth. NBC, ABC and FOX freely film as our Other Potentially Infectious Materials mingle in the workplace.
Everyone's happy, and I get a text saying I sold a painting, and pretty porn girls I haven't had sex with yet say they liked what I said up there, and downtown Oakland is warm and gorgeous in mid-day, and the burgers at the Tribune Tavern are excellent and somewhere some AHF jackass is telling a camera that it's a sad day for public health.
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NBC, ABC and FOX freely film as our Other Potentially Infectious Materials mingle in the workplace.
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Nine months from now Californians will go to the polls again and, while voting for Hillary or (god willing) Bernie, they'll see a blurb down the ballot titled something very responsible like Statewide Sexually Transmitted Infection Protection Initiative and they'll probably vote for it--because why wouldn't you vote for that?--and in one state building or another we'll be doing this all over again. And some will move, and some will quit, and the AHF will keep going because Michael Weinstein's motto is the same one Orwell gave his hell-state in 1984: "The war is not meant to be won. It is meant to be continuous."
But at least today, over this cheeseburger here and now, we have nine more months of work and one Dave and one Barbara who think we might be human. And that is enough to celebrate.