Measure B — Is the Sky Falling?

Clyde Dewitt

The 9th U.S. Circuit Court of Appeals has approved the denial of interim injunctive relief that would have stopped enforcement of Measure B, Los Angeles county’s condom requirement for adult motion picture production.

The AIDS Healthcare Foundation and its driving force, Michael Weinstein, are cheering; and the adult motion picture industry is yelling, “The sky is falling.” Both, as explained here, are misled.

The fact of the matter is that, whether in California, Nevada, Florida, overseas or underground, adult production will continue. But if the Measure B rules are enforced everywhere, adult production will go without its current system self-regulation.

The fact of the matter is that an acorn has fallen on Chicken Little’s head and nothing more; but the problem is the Henny Pennys and Ducky Luckys of the world who don’t understand reality. In fact, at the end of the story, Foxy Loxey — AHF — is not going to eat any of them.

The fact of the matter is that, whether in California, Nevada, Florida, overseas or underground, adult production will continue. But if the Measure B rules are enforced everywhere, adult production will go without its current system self-regulation. Instead of heavily self-regulated commercial booze, it will be bathtub gin.

In the Measure B case, the 9th Circuit affirmed the denial of a preliminary injunction. Read that sentence again; it is an action-packed sentence, and most non-lawyers do not understand the significance of it although many seem to think that they do. Thus, non-lawyers should read the summary that immediately follows.

Some Legal Background

Some basics about the federal court system are in order because reporting about them is often confusing. Fundamentally, there are three levels of federal courts:

Cases are tried in the district courts. That is where most of the litigation takes place – jury trials, motions for injunctions and so on. (Not relevant here is the system of federal bankruptcy courts.) Each state has between one and four federal districts. Each district has a number of judges proportional to the population of the district and the amount of commerce that transpires there. The Central District of California, for example, is the district for the Los Angeles Metropolitan Area.

A party losing at the district-court level generally has a right to appeal to a U.S. Court of Appeals for whatever circuit presides over that district. The U.S. is divided into 12 regions, called circuits, each responsible for appeals from the districts within that region. (Not relevant here is a 13th one, for the so-called Federal circuit, which hears patent and other specialty cases.)

These courts of appeals — often referred to as “circuit courts,” which is technically incorrect — each have a number of judges commensurate with its workload, ranging from a half dozen to a couple of dozen. They sit in panels of three.

After a panel decision, about five percent of the cases will be reconsidered by all of the judges in that circuit — called an en banc rehearing. The 9th Circuit presides over California and the other Western states; and it has so many judges that its en banc rehearings uniquely are before only 11 of its judges.

The U.S. Supreme Court is the court of last resort. A loser in a court of appeals or, if there is a federal issue involved, from a state appellate court, may seek review by the Supreme Court.

However, the high court hears less than 100 cases a year, a small percentage of the many thousands of cases that come knocking at its door. Thus, most of the decisions by the courts of appeal are the end of the road, including probably the subject one. That is especially true because the Supreme Court almost never reviews non-final decisions such as this one.

One more bit of civics necessary to the understanding of the Measure B decision is about injunctions. An injunction is an order from a court preventing a party from or, less frequently, requiring a party to, do something.

A final injunction is one granted after the end of a full trial. A preliminary injunction is one that is a placeholder, averting irreparable harm from occurring during the trial proceedings (depositions investigation, motions and so on).

A temporary restraining order (TRO) is for dire emergencies where irreparable harm will result before there can even be a hearing; a TRO is very rare. If a TRO is issued, a hearing must soon follow.

Finally, as a general proposition, an appeal can be taken only from a final judgment — i.e., after a full trial. One exception to that is the granting or denial of a preliminary injunction is an appealable order. Granting or denial of a preliminary injunction will be reversed only if the court of appeals finds that the district court abused its discretion.

What Happened In The Measure B Case

You now should understand what was stated above: “In the Measure B case, the U.S. Court of Appeals for the 9th Circuit affirmed the denial of a preliminary injunction” — the appellate court found that the trial court did not abuse its discretion in denying a preliminary injunction. That’s the procedural aspect of it.

AHF Intervenes

Now that you understand which court did what, it’s time to talk about the significance of it. More law school.

At the district court level, Vivid Entertainment LLC and related companies filed a lawsuit (Thank you, long-time friend Steve Hirsch!) claiming that the threatened enforcement of Measure B violated the plaintiffs’ First Amendment rights. Under the Civil Rights Act of 1871 (Yes, it’s that old!), the challenge is not to the constitutionality of a law as is generally assumed; rather, it is to the threat of enforcement of an unconstitutional law.

That subtle distinction generally is of no significance. Here, however, Los Angeles County has not demonstrated any meaningful support for the law. After all, AHF had to go out and gin up a referendum in order to put in place a law that Los Angeles County Supervisors easily could have enacted had they been so inclined. In fact, the county declined to defend the law when it was challenged, simply taking no position as to its constitutionality, rather than defending the constitutionality of the ordinance.

The district court upheld the worst parts of the ordinance, as you probably are aware. AHF had moved to intervene, so it could proudly defend the constitutionality of its prize ordinance that the county didn’t much care about. The district court granted the motion to intervene, but a development since then has impacted the issue of whether what the trial court did was correct.

That development involved the 9th Circuit’s ruling on California’s ban on gay marriage. Recall California’s ban also was enacted by referendum. A successful federal court challenge was brought to it by gays who wanted to marry, a case into which the coalition who supported the referendum had intervened. California’s Democratic governor and Democratic attorney general determined that the court was correct and said, in essence, “We’re not going to appeal” — so the supporting coalition filed notice of appeal. That is the same procedure that AHF undertook in the Measure B case.

In the marriage case, after the coalition managed to get the case to the Supreme Court — and what the court did is significant here. The court held that the coalition should not have been allowed to intervene for lack of standing — only California would have standing to defend the ordinance. That is how same-sex marriage was allowed in California — the Supreme Court said in Hollingsworth vs. Perrythat the coalition that supported the referendum did not have constitutional standing to defend the ordinance.

The Court Of Appeals Decision

Now, given the above, you would think that the appellate court would have thrown out the whole case. Nope. Although the denial of a preliminary injunction is an appealable order, the propriety of allowing a party to intervene is not. So, the court of appeals declined to rule on whether AHF could intervene. However, after final trial it will be a live issue. And unless the county has a change of heart, the case should eventually be thrown out on the ground that AHF has no standing to defend the law.

Now, insofar as substance is concerned, the result was not good. The district court had denied a preliminary injunction, largely on the ground that Vivid had failed to demonstrate a “likelihood of prevailing on the merits,” which was not a good sign for the long pull — at least for the substance of the case.

On appeal, the only issue was whether the district court “abused its discretion” in denying a preliminary injunction. The issue of intervention could not be reached on appeal because the appeal court did not have jurisdiction to consider it — or, at least, so it held.

The Point Everyone Has Ignored

Assume for a minute that Vivid loses. Then the industry moves to Nevada and Florida, places where it already is, anyway. Las Vegas has welcomed adult shoots. Florida, where the laws are more iffy than Nevada, now has shooting going on all over the south part of the state.

However, even assume that AHF succeeds in installing condom rules in Nevada, Florida and everywhere else adult might shoot, everyone has forgotten about back in the day.

In the early 1980s, California got the idea that adult video production was prostitution because directors were paying the performers to engage in sexual activities, and because the directors were arranging for the sex partners, their activities constituted pandering — an offense for which the minimum punishment was three years in prison with no possibility of probation.

The authorities in Los Angeles started charging the directors and agents with pandering. This tactic was about as effective as Prohibition was in the 1920s. Remember, however, that in those days, a scene couldn’t be shot with equipment that would fit in a suitcase, as is the case now.

Video cameras were not so sensitive, so lighting was required; movies had scripts (or the manufacturers would not release them), so a sound person was required; and video cameras were very large by today’s standards. But when the pandering prosecutions started, production did not stop. It just went underground. And it is a whole bunch easier to take it underground now than it was then, when all that is needed is the requisite number of performers and camera equipment that fits into a satchel. Shoots will happen in hotel rooms and nobody will know the better, just as they did in the 1980s until the California Supreme Court held that adult shoots were not prostitution (People vs. Freeman).

Hail To The Cheerleader

So, no matter what happens, Mr. Weinstein, who is a self-aggrandizing jerk, is going to lose in the long run, just as did The Woman’s Christian Temperance Union in the 1920s. Cities like Chicago, Kansas City and (of all places) Wichita thrived during Prohibition because of speakeasies and the jazz and the vice that went with it. Adult production will thrive, no matter what AHF does.

One final note: Although thus far unsuccessful, the legal team who is handling the case has acquitted itself impressively.

And Vivid should be applauded for bankrolling all of this.

Clyde Dewitt is a Las Vegas attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at clydedewitt@earthlink.net.

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