LOS ANGELES — The federal judge hearing oral arguments in Vivid Entertainment's lawsuit over Measure B on Thursday said he has concerns with 4th Amendment and prior restraint issues over the statute.
U.S. District Judge Dean Pregerson said that he had big concerns over Measure B's language that includes a "suspicion-only requirement" for a general search and seizure of adult film producers' premises, including at their homes.
Pregerson noted that the ordinance could be abused and that it wouldn't take much to trample 4th Amendment rights by mere suspicion.
"My big concern is the suspicion standard, reasonable suspicion standard, or probable cause standard," Pregerson said. "The concern is that the door is open to general searches of homes that have nothing to do with the actors or production."
Pregerson also noted that there could be prior restraint issues involving preconditions before adult producers can even film. "I tend to agree that there may be some issues in terms of implementation," he said.
Pregerson, in an hour-and-a-half hearing at Los Angeles federal court, listened to arguments from Vivid attorney Paul Cambria and Samantha Azulay, counsel for the AIDS Healthcare Foundation, which has been appointed intervenor for Los Angeles County in the case.
Vivid, as well as co-plaintiffs Kayden Kross and Logan Pierce, is suing Los Angeles County seeking a stay of enforcement through a preliminary injunction of Measure B, the Los Angeles porn-condom ballot initiative approved by voters in November.
Vivid earlier told the court that they would seek the court's reconsideration of an earlier ruling granting AHF intervenor status in the case because of last month's U.S. Supreme Court decision in Hollingsworth vs. Perry, which held that the sponsors of California's Proposition 8 do not have standing to appeal an adverse decision when public official refuse to do so.
But Pregerson said that he believed that the argument over whether the AHF lacks standing to act as intervenor in the case had been well-briefed by Vivid.
"Let's go on with next issue," said Pregerson, moving on to discussion for the motion for preliminary injunction.
In his opening, Cambria told the court that the statute is unconstitutional for a number of reasons.
"It begins by the fact that it deals with expression. It deals with the First Amendment," Cambria said. "It is a content-based statute."
Pregerson, however, said that he agreed with Cambria that the ordinance is a content-based statute, and he asked him to discuss restrictions on First Amendment-protected expression in the making of adult films.
"First of all, the expression that we are dealing are all of the machinations of making movies and whether this statute in some way dictates content of the movies, which it does," Cambria told the court. "It indicates that individuals cannot be portrayed as having sexual relations of a defined nature in the statute unless they are wearing a condo, which of course affects the content of the film and the expression of the producer."
"It dictates the storyline, how they edit the film," he said. "If my client wants to convey lawful sex not obscene without a condom this statute prohibits that."
But the AHF's Azulay refuted the notion that Measure B affects the fantasy erotic message in adult films by making condoms mandatory.
"We dont believe it is content-based at all," Azulay said. "We dont think any expression is being curtailed.
"And they can produce a product with any storyline they want they have the digital capability to express themselves any way they want."
Cambria, in discussing the 4th Amendment issue, said it is a large one and that anyone who makes commercial porn in Los Angeles County — even performing married couples— must apply for permits, pay fees and wear mandatory condoms.
"It permits a general search and one not based on probable cause," Cambria said. "A husband and wife who are making a commercial movie in their own home are subject to this statute. There is no exception.
"With Cal/OSHA, when they have inspected in the past, it is not a prior restraint; if there is a any type of violation the production will stop," Cambria said. "With Measure B, the statute will make the production stop as well as any other movies a producer is involved in. And by mere suspicion they can seize anything ... samples, bodily records or the only copy of the movie.
"What the statute is saying is that particular storylines will be approved or not by the government by this legislation. They are disapproving sex without condoms and the law is making it a criminal act to portray such a thing."
Cambria said that the U.S. Supreme Court in U.S. vs. Stephens decided for protected speech involving animal crush movies despite how ghoulish the content was.
"There is no exception to the First Amendment for a storyline that is reprehensible, for example," Cambria said. "That is essence of First Amendment; the First Amendment is to protect that which may not be popular."
Pregerson said he was wary of Measure B's objectives and hopeful the parties could come to some agreement over the issues because, "I do not fully understand the concerns that underlie the ordinance," he said.
"I understand the health concerns," he said. "But when you look at this statute it seems like what it does is just push the problem, if there is one in adult entertainment, to Nevada or to some other county.
"If the idea is to protect workers in this trade and reduce the risk of these diseases it seems like it is taking a balkanized approach — pushed away to make it someone else's problem."
Cambria was joined by attorney H. Louis Sirkin and Vivid co-founder Steven Hirsch at the plaintiffs table.
Other adult entertainment industry figures attended as well, including Vivid's March Hirsch, Free Speech Coalition CEO Diane Duke, FSC Membership Director Joanne Cachapero and attorney Allan Gelbard.
Duke told XBIZ after the hearing that the FSC was pleased how things went Thursday for Vivid's case seeking the preliminary injunction over implementation of Measure B.
"We are very happy that Judge Pregerson clearly knew the issues surrounding the case," she said.
Pregerson did not indicate when he would rule on pending motions in the case.