LOS ANGELES — The 9th U.S. Circuit Court of Appeals today affirmed a lower court’s order denying a motion to toss Measure B, the voter-approved ordinance that imposes a condom requirement, permitting system and other production obligations on adult filmmakers.
Vivid Entertainment and two co-plaintiff performers said in the appeal that Los Angeles Measure B’s permitting scheme and its condom requirement operate as prior restraints on plaintiffs’ ability to create expression, in the form of adult films, which is protected by the First Amendment.
In granting partial preliminary injunctive relief, the lower court severed one chapter of Measure B in its entirety and severed portions of three other chapters. Vivid appealed the lower court’s decision not to enjoin Measure B in full.
"The panel held that the district court did not abuse its discretion in holding that the invalid portions of Measure B (allowing for modification, suspension, and revocation of permits; authorizing administrative searches; and allowing discretion in setting fees) were severable," the 9th Circuit said.
"The panel held that the district court did not abuse its discretion in declining to enjoin the enforcement of Measure B’s condom mandate," the 9th Circuit said. "The panel concluded that the condom mandate survived intermediate scrutiny because it was only a de minimis effect on expression, was narrowly tailored to achieve the substantial governmental interest of reducing the rate of sexually transmitted infections, and left open adequate alternative means of expression."
The 9th Circuit further held that Measure B’s requirements that adult film producers complete training about bloodborne pathogens and post a permit during shooting served the county’s interest in preventing sexually transmitted infections.
In March, a three-judge panel of the 9th Circuit heard oral arguments over Vivid Entertainment's appeal of U.S. District Judge Dean Pregerson's order denying a preliminary injunction over enforcement of Measure B in March.
9th Circuit Chief Judge Alex Kozinski was joined by 9th Circuit Judge Susan Graber and a visiting federal judge from Ohio, Jack Zouhary, who was designated to the case by Kozinski.
The panel had been asked to decide whether the lower court erred in declining to order an injunction over the “Safer Sex in the Adult Film Industry Act," a voter-approved measure that requires the use of condoms in the production of adult movies in Los Angeles County.
At oral arguments, attorney Robert Corn-Revere, who represents Vivid as well as co-plaintiffs Kayden Kross and Logan Pierce, said that the lower court in August got it partially right, but partially wrong as well.
At the lower court, Pregerson granted some parts and denied other parts of AIDS Healthcare Foundation's motion to dismiss and plaintiffs' motion for a preliminary injunction, as well as vacating altogether the plaintiffs' motion for judgment on the pleadings.
The AHF, the sponsor of Measure B and intervenors in the suit, had taken over defending the case as the lawsuit's official defendant, Los Angeles County, had opted to not defend it.
Corn-Revere said in oral arguments that Pregerson ruled correctly that Vivid's stated claims showed that the porn studio has standing in the suit over the legality of Measure B, that stated claims showed that its 1st amendments rights were violated, that suspension and revocation of film license permits would be deemed unconstitutional under prior restraint laws, and that claims of possible warrantless searches are unconstitutional under the 4th Amendment, among others, including that the definition of "adult films" is vague and overly broad.
"But what the court got wrong is that it incorrectly held that the plaintiffs weren't entitled to a preliminary injunction after extensively rewriting the ordinance," Corn-Revere said in oral arguments. "Measure B has adversely affected adult film production in Los Angeles County. "Press reports say that film production has plummeted 95 percent through 2013."
Corn-Revere emphasized to the panel that the lower court should have enjoined Measure B "in totality and not pieces of it."
"Even as rewritten it still imposed an unconstitutional prior restraint that gives authorities unbridled discretion," he told the panel. "It [also] fails under any level scrutiny because it would not advance the governments interests."
Corn-Revere said in oral arguments that Pregerson's order essentially rewrote Measure B, removing hundreds of words from the law — "three-fifths" of its language were blue-penciled — and that his ruling could put taxpayers on the hook for funding Measure B permitting requirements, including the cost of set inspections and subsequent hearings to determine fines, if the source of revenue is defunded.
At post time, it was uncertain whether Vivid would ask for the full 9th Circuit to re-hear the case.
A Vivid spokeswoman referred questions to the Free Speech Coalition, which said that plaintiffs are considering their legal options.
Meanwhile, AHF Executive Director Michael Weinstein hailed the ruling as a "total vindication."
"The court struck down every one of their arguments," he told the Associated Press.
Weinstein said he hoped the adult entertainment industry will continue to appeal, taking the case to the U.S. Supreme Court, so there can be a final, definitive ruling.
Peter Acworth, the founder of Kink.com who has been a main target of Weinstein over the porn-condom issue, told XBIZ that while he's saddened by the news it doesn't change much from the adult entertainment industry's perspective.
"Our basis in the Cal/OSHA standards board process and in opposition to any future statewide bill will remain consistent: We believe the industry's self regulation in the form of mandatory testing has proven itself as extremely a robust and effective method of STI prevention, and that this approach is more effective than mandatory condoms as required by Measure B," Acworth said.