By J. DeVoy
A law school friend who shall remain nameless sent me a link to this post by Bobbi Starr, asking me if I’d seen it yet. I hadn’t, a revelation that stunned him – apparently I should have, since we’re all in the same porn universe. It’s a pretty good blog and I’ll be checking it regularly in the future, though.
People vastly overstate how porn-related, and concomitantly, how fun, my life is. From what I surmise of their assumptions, I sometimes wish they were right. In a given week I see enough porn that my preferences have been forever skewed to find some girl cooking dinner for me much sexier than any frilly underwear she can buy. Porn’s just a portion of what I do, though it allows for lots of creativity, and it tends to have the most cutting-edge legal issues. At this point, I think I’m better known as counsel of record in several mainstream copyright infringement suits. But, even when I stay up all night working on motions in those types of cases, the assumption is that I’m doing something wild and, of course, concerning porn. Just earlier this week, I had this text exchange with my older sister:
[jmd @ 5:20 am]: Had to write an emergency opposition filing. Just now going to bed. So much for a regular sleep schedule.
[jmd's sister @ 5:27 am (8:27 am her time)]: An irregular sleep schedule in the porn industry? Shocking :-)
And so it goes. I should bring a tape recorder to my parents’ next Christmas. Still, my life is not the hotbed of excitement some hope and, hopefully, others imagine with seething resentment. I spend most of my time hanging out with lawyers, a couple of bodybuilders, and when I’m really hard-up for affirmation, law students. More nights each month are committed to perfecting my deadlift form than drinking.
As mundane as my adult life is (college and, unbelievably, law school, were different stories), I like thinking about the issues facing the all-important porn industry. I’ve argued, repeatedly in fact, that its victory in the culture wars has improved my life, and the lives of other men. I firmly believe that it’s an industry worth fighting to help. I’ve been meaning to write a blog post about how bigger chunks of the porn industry could benefit from moving to Las Vegas. This doesn’t address every thought I have on the issue, but Bobbi Starr’s blog post provides a good springboard for my thoughts. None of this should be read as being aggressive, or even necessarily disagreement with Starr’s points. Having thought about these issues with some depth, I simply think an alternative point of view may be valuable.
Getting on to Substance – The Freeman Case, the First Amendment, and Sin City.
I’m based in Las Vegas and won’t claim to be disinterested in seeing a larger portion of the adult entertainment industry move here. I say “larger” because anyone who reads twitter knows that several companies, including one of the largest in online porn, are already filming large amounts of content in Las Vegas. There are challenges involved in this: Namely, it will be difficult to replicate the infrastructure found in San Fernando Valley. Also, Nevada does not yet have the First Amendment protection found in California under the Freeman case. New Hampshire has this protection, and I would wager that Oregon will probably be the next state to provide it – though, good luck getting anything done there with all the Dworkin/Valenti-types running around Portland.
In Nevada, prostitution – defined in NRS 201.295 – operates in a manner very similar to the California statute at issue in Freeman. Overburdened though Nevada’s courts are, the state lacks an intermediate appeals court and could settle the question of porn production’s legality fairly quickly, with a fairly libertarian Nevada Supreme Court to render the final decision. Then again, why tempt fate a second before it’s necessary?
In many counties, Nevada has legalized – albeit fairly stringently regulated – prostitution. The status of prostitution within the state is practically a precursor for porn. If anything, porn production is the next logical step. And though the regulations concerning prostitution may be wielded like an axe at porn, they are easily distinguishable, as discussed further on.
Escape from L.A. – and AHF, and CalOSHA.
First Amendment concerns are not the only threat facing the porn industry. The Scylla and Charibdis of porn for the last many years have been CalOSHA and AHF, the latter organization being capable of hectoring producers nationwide. As Starr notes:
Here’s the thing — the AHF plans to continue its unwanted crusade across the country. They’ve already made noises in Miami and if the industry moves to Vegas, I don’t see why they wouldn’t show up there as well. If you’re going to make a stand, LA is the place to do it.
As Starr observes in her post, stating that “the AIDS Healthcare Foundation is looking to grandstand and make points with their donors,” the inescapable conclusion is that this controversy boils down to money. Specifically, AHF needs to do something to justify getting more of it from its backers. In my opinion, it would be a rational proposition to pit AHF against a bigger, badder entity that needs and wants money even more than AHF does: The city of Las Vegas and state of Nevada. Is it even a “fight” if only one side shows up to do battle? The city of Las Vegas isn’t going to care what some outsiders think of it – the area’s reputation for no-tell, debauched vacations is well established. It’s not as if AHF is going to lower the city’s esteem as… what, a place to raise a family? A clean-livin’ town? If anything, the chance to catch a glimpse of a favorite star is probably one more reason for a guy to visit Vegas.
At base, Las Vegas and Nevada need money, and now more than ever. AHF will never win the hearts of minds of locals by trying to keep out reasonably lucrative businesses that need use of the services hardest hit in Las Vegas since the downturn. Speaking of Las Vegas “locals,” the metro area is so transient that it’s not dissimilar from a 500,000 person city in its character, despite its population being around 2 million. In some ways, Las Vegas might as well be Milwaukee. And, yet, many locals rarely venture to the strip, or downtown; instead, they predominantly stay within their master-planned communities. While some may call this a myopic and provincial way of living, this kind of bedroom community mindset is exactly what will lower any resistance people may have, even in the abstract, to porn companies coming to town. If it’s not happening in their actual backyard, and they don’t see it, why would they care – assuming, in the first place, that they ever found out the porn industry was in town.
Because Nevada is Nevada and California is California, CalOSHA’s risks are mitigated. If CalOSHA tries to regulate porn shoots occurring within Nevada because the companies they’re done for are based in California, the ensuing legal battle between Nevada and California will resemble a religious crusade. Despite Californians having a huge presence in Las Vegas as transplants, tourists or otherwise, Nevada’s state character is steeped in making sure everyone knows that it is not California. (This was an overarching theme in BarBri when I studied for the Nevada bar exam.) Nevada will not respond well to California encroaching its jurisdiction, especially if CalOSHA agents show up within Nevada’s physical territory.
Assuming CalOSHA won’t overstep its jurisdictional mandate, that leaves the porn industry to contend with Nevada OSHA (“NVOSHA”). To get a sense of the disparity of resources at play here, compare the CalOSHA website with NVOSHA’s. NVOSHA couldn’t keep six people from dying, most of them brutally, during the completion of America’s largest privately financed construction project. Between that kind of feeble oversight, Nevada’s far more dangerous industries – such as mining – and the general lack of resources Nevada has relative to California, it’s reasonable to believe that NVOSHA has bigger concerns than whether two consenting, regularly tested adults are wrapping it up when making commercial motion pictures.
A potential slippery slope exists with respect to Nevada’s prostitution regulations, which have numerous onerous requirements, from monthly and weekly testing (depending on the disease) to mandatory condom use. Prostitution, though, is a service open to the general public, while porn is a closed circle where those on camera are regularly tested and (theoretically) limiting their contact with unknown, untested interlopers. Because of the inherent differences between porn companies and brothels, and the reduced public health concerns at play, the condom restrictions should not transfer over – but that will be left to the legislature. If they’re getting all of this new growth because the porn industry wanted to escape the tyranny of condoms, will legislators foist them upon their newest constituents? It’s possible, but seems unlikely. Even if those provisions are put into effect, NVOSHA has to actually enforce them – something it may be ill-equipped to do.
Las Vegas Loves Porn… and Anything With Money, Really.
Another point raised by Starr is the suspicion that people don’t really love porn, despite the money it could bring to their local economy. To some extent, I agree with this. Some ultra-lib location like Manhattan would look down its collective nose at middle America for feeling uncomfortable about porn — but if production ever showed up below 125th Street with any substantial volume, it would quickly be zoned out as “harmful to property values,” and opposed under the color of PC rhetoric, such as how it’s “degrading” to women and normalizes male violence. On the other hand, Las Vegas has a robust industry of escorts (despite prostitution being illegal within Clark County) and strip clubs that everyone accepts as part of the landscape. Without making it sound like Detroit, as I am pretty fond of Las Vegas, I think people will embrace whatever revives the area. Downtown Las Vegas, despite having a few cool bars and art studios I’m fond of, is underdeveloped for an urban core and fairly low-density. Thus, it’s practically giving land away for development through tax credits. They city doesn’t condition the credits on how the land will be used – as long as something’s being done, and people are being employed, Las Vegas is happy.
To those who claim that the tide will turn against porn when the economy improves, I have some good/bad news: Economically, things are never going to get better. We’re at the dying, spasming end of American-style capitalism. I hope you own a gun. Consequently, capital holders can put a collar around places like Las Vegas, making governments and citizens alike do whatever the investors want. Capitalists have the money, and capacity to bring more, that everyone else needs. Those who can muster up $1M in liquid assets, and probably down to about $250,000, can basically write their deal’s terms. The global economy’s collapse isn’t really any one person’s fault, anyway, so it shouldn’t impede making smart business moves in the here and now. After all, if everyone lived in fear of the world ending tomorrow, nothing would get done, now would it?
A Sidebar About Miami.
Starr also notes the recent arrest of Kimberly Kupps on numerous obscenity counts as a reason to avoid Florida. (You can donate to Kupps’ defense fund here.) This is a reasonable concern, but one that insiders within Florida’s adult community can dismiss with fairly strong assurances. In addition to geographic distance, Miami and Polk County Florida are culturally very distant and distinct. Polk County Sheriff, Grady Judd, has made it his life’s work to punish any kind of sexual expression occurring in his jurisdiction, and is a retrograde bully unmatched by any in Florida. Miami doesn’t have the absolute safe harbor protection that Los Angeles does due to Freeman, but its resident businesses have done very well for themselves, mostly free from significant legal interference. With that said, a Judd-like epidemic of arrests is unlikely to sweep Miami-Dade county.
Is “Going Underground” Still a Thing?
In this internet age, where everyone competes for Google rankings and traffic, and search engine optimization is a lucrative industry, rather than some annoying B-school buzzword, is it even possible to go underground? Setting aside competition for internet traffic, since that’s where most of the money is now, going underground carries many possible tax consequences that can consume more than a company’s worth, or makes. Back-owed interest and penalties are not your friends.
I’m ambivalent in the desirability of porn being mainstream v. underground debate. There are pros and cons to each side, and I think the best approach depends on the company and its content. Culturally, though, “porn” qua concept is mainstream, even if certain subsets and niches of it are less known.
One of the concerns raised by Starr is that “legitimate businessmen” would co-opt the industry if it were to go underground, and make it even more volatile than it currently is with CalOSHA and AHF breathing down its neck. This, too, is a valid concern. Any city with appreciable population, say over 200,000 people, has competing networks of organized crime. Though the appearance has changed, from “families” with members wearing pointy-toed shoes and double breasted suits to gentlemen with baggy jeans and neck tattoos, these organizations still exist. For the most part, their influence seems to have been confined to drug and prostitution trades.
I’m sure that there are intersections between organized crime and legitimate businesses throughout the country — assuming otherwise would be naive. But, given Las Vegas’ modern origins as a gangster playground, the city and state are concerned about making sure that scenario never happens again. Because of the efforts of people ranging from Howard Hughes to Steve Wynn, Las Vegas has come totally above ground and is very much a corporate town – all of the casinos on the strip and off are owned by a small handful of companies. This isn’t to say there aren’t seedy elements of Las Vegas. Seedy sells, after all. But Las Vegas now is law-abiding in a way that it wasn’t at its 20th-century inception.
Because of this somewhat nefarious history, Las Vegas and Nevada are particularly sensitive to the presence of organized crime and its intersection with what appear to be legitimate businesses. MS-13 will always be smuggling in drugs from Central America, no matter what local, state and federal authorities do. To the extent organized racketeers can be prevented from co-opting businesses and disenfranchising their customers, though, Nevada and Clark County appear to take that threat much more seriously. Theoretically, a mob takeover of business can happen anywhere. In my observations, however, it’s less likely to occur in Las Vegas than other places.
Conclusion (a/k/a tl;dr, Summary)
Though Las Vegas is not a perfect location for relocation of the porn industry, it’s a good one – better than many alternatives. While Miami is an option, it is a more expensive place to be than Las Vegas by most every metric. Unlike Nevada, Florida still has a pesky capital gains tax. Las Vegas is much closer to the San Fernando Valley, too, making it easier to get a critical mass of people to make the necessary jump across state lines.
Relocation may be easier and more profitable than digging one’s heels in the dirt and fighting a war nobody particularly wants to have, especially against deep-pocketed adversaries such as CalOSHA and AHF. Las Vegas is as tolerant as it is willfully blind to the sex industry already here, and it is likely to welcome economic activity in any manner it can obtain it.
As in any business, there are risks involved in relocating – especially to Las Vegas. But are they any costlier than the slow death of remaining so heavily in Los Angeles, where the thousand cuts of taxation, CalOSHA, AHF and other challenges bleed dry the remaining brick-and-mortar porn companies? At this point, it hardly seems like it.