Carlos Miller – First Amendment Hero

If you don’t already know who Carlos Miller is, you should. You are more free because Miller won’t let newsgathering and photography die under the wheels of a paranoid nation, shrieking with fear at imaginary terrorists, and hiring policies in police departments that seem to favor people with personality disorders that would make Eric Cartman blush.

Miller’s crusade began a few years ago, when he photographed some Miami-Dade officers standing around on the street. Arrested for his “crime,” Miller beat the rap. Then, he did it again, and was convicted, but won his case on appeal, despite representing himself. (source). Since then, Miller has refused to back down when challenged by police officers, TSA Agents, and rent-a-cops who think that they are above the law. He recently beat another charge, over dishonest testimony by the Miami-Dade cops. (source)

Anyone with even a half a brain knows that Miller’s conduct is legal. However, as his case requiring an appeal shows us, judges don’t aways give a shit about the law. And, when a judge and a prosecutor team up to spank a citizen for not respecting authority, that citizen can face serious repercussions. Miller faced incarceration and financial ruin, and does again and again, when he refuses to back down in the face of a pig screaming “respect my authoritah.”

Do you have balls that big?

Last night, Miller was at it again. Taking pictures. For this “crime,” a bunch of gutter swine decided that it was time to punish him. He has a history with “50 state security.” He is involved in a lawsuit against them for violating his rights. Funny enough, they decided to rough him up last night.

As a First Amendment lawyer, I occasionally get mail from people saying really nice things about what I do. I stick up for the Constitution. I stick up for people whose rights have been violated. But, I do so in a pretty cushy way. Yeah, I wind up not getting paid for my work a lot of times, since I can’t turn down a good First Amendment story. Sometimes I even get threatened by opposing counsel when I outclass them in terms of professionalism and ability. Sometimes, I agree to help someone on a pro bono basis, and they turn on me because they want to prove that no good deed goes unpunished. Back in 2006 or so, I had a redneck display a gun to me, to warn me that representing a “dirty bookstore” in his town ran afoul of his christian principles. I have gotten my share of threatening phone calls and emails.

But, I’ve never been locked in handcuffs for the First Amendment.

I’ve never faced financial ruin and imprisonment for the cause.

I’ve never shed actual blood for it.

Miller has done all of the above.

Why?

Because someone has to.

Someone has to say “no” to the flunkies and the petty little tyrants who incrementally chip away at our liberties. Someone has to have the courage to put his liberty and his personal safety on the line. That someone is Carlos Miller.

And Carlos Miller is my hero. He should be yours too.

Proposed New Porn Rule: No porn with your kids

A few weeks ago, I declared that I have two rules for porn:

Rule #1: The subjects must be adults
Rule #2: The subjects must be consenting adults

I am not sure if I should add this as a third rule:

Proposed Rule #3: The subjects should not be in a pornographic film with their children, of age or not.

A mother-daughter duo is, apparently, launching a porn career together. (Oh… one guess where these beauts are from).

The mother and daughter claim that this is not technically incest because they refrain from making physical contact with each other during sex, while participation of a third party.

Although in the video it may seem as though they are touching or kissing, they claim that it is not happening.

What do you think? They’re both over 18. So this does not violate Rule #1 or Rule #2. Do we need a third rule? Maybe not… maybe we should just have a “now that is totally fucked up” category.

Update: A commenter asked if I thought “sister porn” was ok. I said that was all right, since I presume that sisters are relative equals, thus there is no power dynamic that fucks things all up.

I guess what makes me uncomfortable about parent-child porn is that if it is the parent driving the move, then I can’t see how there could be an absence of coercion. If it is the child driving the bus to crazy-land, then I just can’t imagine that there was good parenting involved.

I think that my discomfort really isn’t from a “this porn is too fucked up” perspective… it is a parenting issue. Because honestly, if a two women pretended to be mother-daughter, mother-son, father-son, father-daughter, in a porn movie, I wouldn’t care. I might not buy it, but I wouldn’t care if you did.

I might be getting old.

Deadspin Weighs in on Raanan Katz Suit

FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!!!!!

As some of you remember, Raanan Katz sued Google and others for copyright infringement this summer over a Blogger user’s publication of an “unflattering” photograph of him.  Today, popular sports blog Deadspin has the story.

Beyond the copyright suit, the Deadspin piece goes on to discuss a Florida trial court’s order in separate, concurrent litigation that Katz has brought against the same defendant as his copyright suit. 

This is a very complicated case. You know a lot of ins, a lot of outs, a lot of what-have-yous, but in particular, Deadspin addresses a decision by Florida’s 11th Judicial Circuit enjoining the defendant from writing further about Katz, since what the Defendant has written thus far is “arguably defamatory.” (source.)

As Randazza is counsel of record in the case, we provide no comment beyond a link to the appellate brief in the case.

Hemingway’s Cats, Flunkies at the USDA, and the Commerce Clause

If I remove these glasses, that will substantially affect interstate commerce, Mr. Larry Johnson.

Henmingway said, “There is nothing noble in being superior to your fellow man; true nobility is being superior to your former self.” That may be true, but you still have to point at the asshats and laugh, if not throw things at them.

If you’ve ever been to Key West, you’ve probably gotten drunk on sticky frozen cocktails, eaten conch fritters or key lime pie, tried to see this “green flash” that supposedly happens at sunset, but never does, and you’ve said “awwww” at one of the “Hemingway cats” that roam the island. (Either that, or “get away from me, you mangy mutant cat!”)

The cats are (word of the day, kids!) polydactl cats, that is they have six (or more) toes. Legend has it that sea captains considered polydactl cats to be good luck, and a particular captain named Stanley Dexter happened to be drinking buddies with Ernest Hemingway. Dexter gave Hemingway a polydactl cat named Snowball; Hemingway didn’t bother to have Snowball spayed, and the rest is history.

Now, Key West is home to a small colony of polydactls, which are informally called “Hemingway Cats,” and the colony pretty much comes and goes as it pleases, but its home base is (naturally) the Hemingway House at 907 Whitehead Street, which is now a museum.

All was well with the cats. They lived there, charmed visitors, roamed free, and never bothered anybody. Until 2003, when apparently a visitor “expressed concern” about the cats’ welfare — all the way to the United States Department of Agriculture. (source). One thing led to another, and the Hemingway Cats (figuratively) went to federal court.

In 2003, Dr. Moore, of the USDA recommended that the museum apply for a USDA license as an “animal exhibitor.” He returned to Key West, on your tax dollars, and “raised concern” that the cats roamed free. Their suggestions?

contain and cage the cats in individual shelters at night, or alternatively, construct a higher fence or an electric wire atop the existing brick wall, or alternatively, hire a night watchman to monitor the cats; tag each cat for identification purposes; construct additional elevated resting surfaces for the cats within their existing enclosures; and pay fines for the Museum’s non-compliance with the AWA. 907 Whitehead St., Inc. v. Gipson, 2012 U.S. App. LEXIS 25106 (11th Cir. Fla. Dec. 7, 2012)

Moore came back again in 2004, with Dr. Gja, also of the USDA. When they couldn’t figure out a reasonable way to contain the cats inside the museum, the USDA denied the license and informed the museum that it would face fines of $200 per day, per cat. The USDA threatened to confiscate the cats, and finally someone at the USDA grew half a brain. “Dr. Chester A. Gipson, a USDA deputy administrator for animal care, proposed a temporary resolution: granting the Museum an exhibitor’s license from the USDA without prejudicing the Museum’s right to contest the USDA’s legal authority to regulate the Museum.” Id.

And that is what they did — unsuccessfully.

“The AWA somewhat obscurely defines an “exhibitor” as “any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary.” 7 U.S.C. § 2132(h).” Id. The Museum did not dispute that it exhibits the cats for compensation, but argued that its exhibition was not a “distribution . . . which affects [interstate] commerce.” The 11th Circuit Court of Appeals disagreed, holding that the Museum, indeed, “distributed” the cats in a manner that affected interstate commerce.

How?

They gave cats away, and people could view the cats on the Museum’s website. Silly, but you can squint your eyes and see the logic.

Then it goes right over the cliff. The 11th Circuit held that even if those conditions were not met, the Museum still “distributed” the cats. The court wrote: “The Museum “distributes” the cats in a manner affecting commerce every time it exhibits them to the public for compensation.” Id. Yep. You read that right. Little did you know that when you walked into the Hemingway House and squatted down to look at a six toed cat, you were involved in an interstate commercial “cat distribution.”

But, of course, the federal government’s Commerce Clause power couldn’t possibly extend to whether or not some six toed cats stay inside at night, on an Island at the tip of Florida, right?

The Commerce Clause, U.S. Const. art. I, § 8, cl. 3, authorizes Congress to regulate “the channels of interstate commerce, persons or things in interstate commerce, and those activities that substantially affect interstate commerce.” The 11th Circuit concluded that “the Museum’s exhibition of the cats substantially affects interstate commerce.”

“The Museum argue[d] that its activities are of a purely local nature because the Hemingway cats spend their entire lives at the Museum—the cats are never purchased, never sold, and never travel beyond 907 Whitehead Street.” In making that argument, the Museum cited United States v. Lopez, 514 U.S. 549 (1995)(gun-free school zone act unconstitutional). Nevertheless, the court found that the cats substantially affect interstate commerce.

But the local character of an activity does not necessarily exempt it from federal regulation. “[W]hen a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” Gonzales v. Raich, 545 U.S. 1, 17, 125 S. Ct. 2195, 2206, 162 L. Ed. 2d 1 (2005) (internal quotation marks omitted); see also Wickard v. Filburn, 317 U.S. 111, 125, 63 S. Ct. 82, 89, 87 L. Ed. 122 (1942) (reasoning that even if “activity be local[,] and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce”). And it is well-settled that, when local businesses solicit out-of-state tourists, they engage in activity affecting interstate commerce. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 573, 117 S. Ct. 1590, 1596-97, 137 L. Ed. 2d 852 (1997). The Museum invites and receives thousands of admission-paying visitors from beyond Florida, many of whom are drawn by the Museum’s reputation for and purposeful marketing of the Hemingway cats. The exhibition of the Hemingway cats is integral to the Museum’s commercial purpose, and thus, their exhibition affects interstate commerce. For these reasons, Congress has the power to regulate the Museum and the exhibition of the Hemingway cats via the AWA.

This shouldn’t come as too much of a surprise. Remember, in Gonzalez v. Raich, the Supreme Court found that if you grow marijuana in your living room, and pick it in your living room, and smoke it in your living room, with the windows closed, and never receiving a guest, then that has a “substantial effect on interstate commerce.” So, if a plant in your living room affects interstate commerce, why not cats jumping over a fence?

So what do we learn here? Most importantly, we are reminded that the Commerce Clause is a congressional blank check to do whatever the hell it wants. But, we’re also reminded that some people’s lives must truly be so without meaning, so truly worthless, that I would rather burn in a lake of fire for all eternity than be reincarnated as someone like them.

Hemingway once said “Every man’s life ends the same way. It is only the details of how he lived and how he died that distinguish one man from another.”

All of this could have been avoided, if someone at the USDA pulled their head from their ass, wiped the shit from their eyes, and looked at the world with a little bit of clarity. For any of this to happen in the first place, someone at the USDA had to get this issue on their desk, and had to say “I, sir, am important,” and decided to exert their Cartman-esque authoritah in the dumbest way possible. They had to leave Option B on the table, which would have been “I’m using my discretion to determine that this is a unique situation, and probably not the best use of the USDA’s money and time. In short, I am a thinking human being, not governed by a script.”

The details of how these flunkies at the USDA did their jobs speak volumes about them. Their lives will end the same way all of ours do, but their worthlessness as human beings is conclusively proven — in a federal case, no less.

Looks like I picked the wrong time to leave Florida!

Python hunting contest in the Everglades! (source)

I told you that Florida was backward…

I frequently write about how my former home state of Flori-duh is backward. Well finally, someone agrees with me. Meet Carlos Romero, 31, charged with (oh shit) “sexual activity involving an animal.”

According to Local 10, a man spotted Romero “doing sexual acts with his miniature female donkey.”

According to the article, Romero didn’t seem shy about his actions. He allegedly told deputies that he “performed sex acts” with the donkey 5 or 6 times, and that, “Florida is a backwards state and people frown on zoophilia here.”

More Book Banning.

Fifty Shades of Grey, currently number one on the New York Times Best Seller list, is a charming story about a college graduate, her billionaire boyfriend, and their sex life. It’s labeled as erotic fiction, but it sounds more like porn for housewives. It was apparently developed from a work of Twilight fan fiction under the author’s penname (I shit you not) “Snowqueen’s Icedragon”. That should tell you everything. I have no plans to read it.

But, in the continuing crusade to protect…someone…from reading about any kind of sexual encounter beyond “with the lights off and through a hole in the sheet just to make a baby”, Brevard County, Florida banned the book from its public libraries. Source.

When asked why the Kama Sutra, Lolita, and the Tropic of Cancer are still permitted to remain on the shelves, Cathy Schweinsberg, the library services director pointed out that those books became classics because of the quality of the writing. I can’t argue with her on that, I suppose. Fifty Shades of Gray apparently has plot and character development that wouldn’t fill a teaspoon. But do we really want people like Ms. Schweinsberg telling us what is appropriate to read and what isn’t? Removing this book from the shelves of the public library is just flat out wrong.

The real struggle I’m having with this is not defending the stupid book or the willingness to join the crusade to keep it from being banned. No, I’m struggling because of the moral quandary I’m having in deciding whether to permit it to grace my personal banned books library. Technically, it’s been banned, so it should be there, but…..yeesh. Please, for the love of all that’s holy, don’t ever let them ban Twilight.

Orlando Beats Out Sin City for Title of Smuttiest City in America

…According to Men’s Health Magazine.  (source.)

Florida takes honors as the “Most Salacious State,” with five cities ranked in the top 60.

Crazy, meet Racists. Racists, meet Crazy.

Man skipped in line allegedly beats McDonald’s manager with bat | www.wftv.com.

 

Come for the workers’ compensation story, stay for the racist commentary.

Seems like some guy has been reading the Consumerist too much and decided that the executive e-mail carpet bomb was insufficient.  So, he registered his complaint with management with a baseball bat.  Legal stuff: while I know MA law better than FL, generally, he can collect workers’ comp, and file a third-party suit against the customer.  Maybe a products liability claim against Louisville Slugger??  Oh, and the comp carrier would have subrogation rights in any third party recovery.  No suit against McDonald’s or the co-worker, due to the century old trade-off.

Anyhow, I thought that would be the end of the story when I read it.  Then, I read the commentary.  Whole lotta racism.

Before it gets removed (parts have been already):

 

• Posted by FaceTheFacts420 at 8:17 a.m. Apr. 24, 2012

Di. Ver. Si. Ty.

• Posted by lookintomyeyes at 8:32 a.m. Apr. 24, 2012

FaceTheFacts420, Yep, it’s all black people. Unless you count the white guy who was caught on video ransacking a business, the white girl who robbed a store to get money for her drug habit, and the pot smoking inbred who spends his days on multiple websites posting “diversity” comments. Get your head out of your azz and get a job.

• Posted by shootgunusa at 1:05 p.m. Apr. 24, 2012

White men can’t jump. Negros can’t shoot.

Posted by coonhunter at 1:09 p.m. Apr. 24, 2012

Got to 365black.com and see who Mcdonalds is after. The dollar menu was invented for the blacks so they can feed their kids.

Posted by billpierce at 1:16 p.m. Apr. 24, 2012

When will we stop pretending that these savage pavement apes are HUMANS just like us? Enough to make you want to go all Zimmerman!

Marc, I’m betting you’re glad you left Florida.

Drinking, Large Breasts, and the Law

PSL woman Maureen Raymond says her ‘big breasts’ hindered her DUI test performance, affidavit states.

While one might think think I posted this article for the prurient interest, it is actually because of a statement in the article that annoyed me.  I quote:

It wasn’t clear whether large breasts could be cited as part of a DUI case defense or whether case law supports such a contention.

Okay, Will Greenlee from Scripps, why did you feel the need to include this masterful insight?  It wasn’t clear to whom, to you?  How much research did you do to check?  What is the purpose of this statement?  While Marc is a Florida licensed attorney and I am not, I am going to go out on a limb here and say that this is not something one needs to cite as a formal defense or rely upon case law to contend.

Rather, this is a question of fact as to whether she had a reasonable basis to refuse or otherwise fail at a field sobriety test.  I think it would have been better for her to try, and fail, rather than refuse, unless there was some medical reason why an attempt would be medically ill advised (e.g. pain).  At trial, she may need to introduce biomechanical expert evidence to provide the opinion that large breasts interfere with the ability to perform FSTs, and that could be subject to a Daubert-type challenge.  But Daubert (and state analogs) only speaks to the method by which scientific theory and evidence is admissible, not whether a particular theory is admissible.  It is not a “large breast” defense, it is an “inability to perform FST” defense.  It is a question of fact, not a question of law, so, typically no case law is warranted (unless there is a judicial notice issue, but I will avoid commenting on judicial notice of large breasts).

Journalist, stick to the story and stay out of the law.  You only embarass yourself.

How much for a blowjob in a Florida trailer park?

Usually about twenty bucks according to the Palm Beach Sheriff’s Office.

Sheriff Mike Scott vs. The Media (again)

Lee County, Floriduh: Sheriff Mike Scott, (who I wrote about here) didn’t like being questioned about a federal lawsuit filed against his department. To show everyone that he’s boss, he decided that the Fort Myers News Press will no longer have the right to ask questions at press conferences, and he’s decided to severely limit press access to his department. (source)

Apparently, this is not the first time that Mike Scott has thrown a temper tantrum at the media.

Floriduh county adds sex offender restrictions. It should matter to you.

In Florida, registered sex offenders can not live within 1,000 feet of a school, church, day care center, or a park. Florida municipalities set up even more restrictions. See Wernick, In Accordance with a Public Outcry: Zoning Out Sex Offenders Through Residence Restrictions in Florida, 58 Fla. L. Rev. 1147, 1163-1164 (2006). In Miami, despite its density, prohibits sex offenders from living within 2,500 feet of such places. As a result, in some places like Miami, they set up a shanty town under a bridge because they could not find anywhere else in Miami where it was legal for them to live. (source)

Lake County, Florida wants to go even further — prohibiting sex offenders from living within 500 feet of each other. (source)

The county commission chairwoman, Leslie Campione was proud of the effort.

“We’re on the cutting edge to protect our children and to protect our communities,” Campione said. “Even if we have challenges, we’re on good ground here.”
(source)

Who will stand up for the sex offenders? Not many.

What people generally miss in this kind of story is that when the government targets one group, even an “evil” group like sex offenders, it starts the ball rolling toward everyone’s rights.

If the government can impose absurd conditions like this on someone who is a “sex offender” then why not someone else? Are “sex crimes” something special? Of course they are. The sex offender boogeyman preys on our deepest fears. What parent is willing to risk their kid being snatched up from the playground? It is pretty easy to whip up a room full of parents into a crazy caucasian frappe when you start talking about “the children.” But do these laws really help? If a guy has a van, some candy, and the desire, does it matter if he lives across the street from the school or 100 miles away?

Worse yet, if you look at the list of “sex offenses,” they are not limited to crimes that would make me feel uncomfortable living next to someone. In Florida, you can be convicted of obscenity and wind up on a register. I know people who have been charged with, and who even went to jail for violating the obscenity laws. I’d feel comfortable being their next door neighbor. I’d feel comfortable letting them babysit my kids. I have never even heard of someone charged with violating an obscenity law who I wouldn’t break bread with. Yet, a conviction for that “crime” — the crime of having a movie that the government doesn’t like — is enough to set you on the spiral to homelessness.

18 year old who had sex with a 15 year old girlfriend? Sex offender. Underage kid who took a nude photo of herself? Sex offender. Pissing in an alley because you couldn’t find a bathroom? Indecent exposure — sex offender. I’d be fine if my kids were being babysat by someone who got convicted of those crimes. But, Flori-duh decides that it wants to use the politically charged “sex offender” status to see how far it can push its authority. After all, who wants to stick up for rapists and child molesters?

When you say “not me” — you need to realize that when you stand up for these “untouchables” you don’t need to do so out of compassion for them (although that is your right). You need to stand up for them because you are really standing up for yourself.

H/T: Blevins

Scott Randolph, Flori-duh Rep., needs a First Amendment refresher

State Rep. Scott Randolph (D-Orlando) wants to pass a bill that makes it a felony for jurors to try and sell their story within 9 months of a trial. (source)

Apparently, Mr. Randolph, in his rush to score cheap points in a bill tagged with the Casey Anthony wand, forgot about Simon & Schuster v. Crime Victims Board, 502 U.S. 105 (1991). In that case, the Supreme Court held New York’s “son of sam” law unconstitutional. That law that made it illegal for a criminal to profit from selling his story.

So, Mr. Randolph, how the hell are you going to justify making the same thing illegal for a juror, who has done nothing wrong AND who has given up his or her time to serve on a jury? Oh, didn’t think of that, did you?

Why filming porn in Las Vegas should make sense (or: unsolicited response to Bobbi Starr)

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.