Judge Issues Key Rulings in Measure B Case

Rhett Pardon

LOS ANGELES — In a mixed ruling over the fate of Measure B, a federal judge has denied Vivid Entertainment’s motion for preliminary injunction in part and denied the AIDS Healthcare Foundation’s motion in part to dismiss the case.

U.S. District Judge Dean Pregerson in his 34-page ruling Friday vacated Vivid’s motion for judgment on the pleadings and denied a preliminary injunction over Measure B, but he gave the studio some other wins over litigation stemming from the studio’s legal move to find the Safer Sex in the Adult Film Industry Act, decided by Los Angeles County voters, unconstitutional.

In effect, Pregerson upheld the constitutionality of the mandatory condom law while curbing Los Angeles County's ability to enforce it.

“After reviewing [the AHF’s] motion to dismiss, the court grants dismissal of [Vivid’s] claim that ballot initiatives cannot, as a matter of law, implicate First Amendment rights, that state law preempts Measure B and that Measure B violates [Vivid’s] due process rights with the exception of [Vivid’s Fourth Amendment claim over search and seizure],” Pregerson ruled Friday.

But Pregerson said that Vivid has standing in the case and that “in light of the potential First Amendment concerns that Measure B implicates, the costs and consequences of complying with Measure B, and the county’s expressed intent to enforce Measure B, [Vivid and co-plaintiffs] have standing to challenge it.”

The federal judge further ruled that the AHF’s motion to dismiss Vivid’s First Amendment claim is denied, saying that “not all conduct receives First Amendment protection; only expressive conduct is considered speech and implicates the First Amendment.”

“Presently at issue is whether engaging in sexual intercourse for the purpose of making a commercial adult film receives First Amendment protections. The court is aware of no case that has analyzed this issue,” Pregerson ruled.

“However, given the multitude of cases that have analyzed restrictions on adult entertainment under the First Amendment, this court concludes that sexual intercourse engaged in for the purpose of creating commercial adult films is expressive conduct, is therefore speech, and therefore any restriction on this expressive conduct requires First Amendment scrutiny.

“Measure B’s stated purpose is to minimize the spread of sexually transmitted infections resulting from the production of adult films in Los Angeles. Because this purpose focuses on the secondary effects of unprotected speech, rather than the message the speech conveys, it will be reviewed under intermediate scrutiny.

“Under intermediate scrutiny narrow tailoring, Interveners must demonstrate that the recited harms’ to the substantial governmental interest are real, not merely conjectural, and that the regulation will in fact alleviate those harms in a direct and material way.’

“While an ordinance is not invalid simply because there is some imaginable alternative that might be less burdensome on speech, the Interveners must prove that the statute does not burden substantially more speech than is necessary to further the government’s legitimate interests.”

But Pregerson granted dismissal of Vivid’s claim that Measure B, and other such referendum, are inherently invalid, because they do not have legislative records and their findings deserve no deference.

“Because the referendum process does not invoke the same type of searching fact finding [as it would incur in the Legislature], a referendum’s fact finding does not justify deference,” or respect.

“However, an undeferential review of Measure B’s findings does not equate to an automatic resolution in [Vivid’s] favor. It means that [the AHF] must have a record sufficient for Measure B to withstand intermediate scrutiny, without the benefit of deference.”

Pregerson also said that Vivid’s argument that Measure B does not provide sufficient procedural safeguards, does not have narrowly tailored requirements and gives the county unbridled discretion.

But he said that procedural safeguards as relating to revoking Measure B permits is unconstitutional.

“[Vivid focuses] on the procedural safeguards relating to revoking Measure B permits,” Pregerson said. “Prior restraints that target adult entertainment, as Measure B does, must provide the following procedural safeguards: ‘The licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained, and there must be the possibility of prompt judicial review in the event that the license is erroneously denied.’

“These provisions of Measure B are, thus, unconstitutional because they provide for suspensions and revocations before a judicial determination,” he ruled.

“Additionally, government officials cannot have unbridled discretion over permits that implicate First Amendment activity. Here, in order to receive and keep a permit, the following is required: pay for the permit, complete an application, conduct blood-borne pathogen training, post the permit on the worksite and use condoms during anal and vaginal sex. These criteria are clear and do not leave much, if any, room for discretion.”

Pregerson said that the provisions are too broad and not limited to Measure B’s requirements, and that it applies to conditions “reasonably suspected” to be “suspected of causing” the transmission of unnamed diseases.

Pregerson also discussed allegations that Measure B also prohibits the production of any adult film by any entity that has had a permit suspended or revoked.

The federal judge said that Vivid had stated a valid claim that Measure B is not narrowly tailored because, although the condom requirement applies only to vaginal and anal sex, a Measure B permit is required to film much more, including penetration by finger, penis or inanimate objects.

“Since Measure B only requires condoms for vaginal and anal sexual intercourse, and since Measure B’s purpose is condoms-focused, [Vivid] has stated a claim that the permit requirement is not narrowly tailored,” he ruled.

Pregerson also ruled on fees for adult producers, allowing them constitutional under Measure B despite that the AHF provided no evidence that they are revenue neutral

“Even though the permit fee in this case, $2,000-$2,500, is relatively minimal, the court will not assume that it is constitutionally permissible,” Pregerson ruled, noting he agreed to a federal court appeals decision and logic over fees relative to fees over a strip club.

“Courts applying the revenue-neutral rule to adult entertainment require the government to prove that revenues merely cover “the costs of administering [the] licensing program,” he said.

Vivid also challenged several terms of Measure B over vagueness — including “commercial purposes,” “reasonably suspected,” “hazardous condition” and “interference” — but Pregerson said that because the studio did not analyze these terms’ meaning or their potential for confusion,  he did not find them vague.

As for due process claims, Pregerson weighed in on Vivid’s claim that Measure B authorizes an unconstitutional system of warrantless searches and seizures. He denied dismissal of Vivid’s claims.

“Given that adult filming could occur almost anywhere, Measure B would seem to authorize a health officer to enter and search any part of a private home in the middle of the night, because the suspects violations are occurring,” Pregerson ruled. “This is unconstitutional because it is akin to a general warrant.”

Pregerson said that there were some remaining Vivid claims over Measure B that are likely to succeed on their merits: the fees provision and the administrative search provision, as well as others.

“The fees provision and the prior restraint provision concerning Measure B’s broad revocation policy (i.e. that a revoked permit means a producer cannot work on any adult films, instead of simply the offending film) are likely to succeed on the merits because [the AHF has] offered no evidence that these provisions are narrowly tailored,” Pregerson said.

“Once a plaintiff shows that a constitutional rights claim is likely to succeed, the remaining preliminary injunction factors weigh in favor of granting an injunction,” he said in the ruling.”

Pregerson, who earlier said in oral arguments that he was skeptical of “severability” issues with the measure’s language, said in his ruling that it is a matter of state law but that some pieces of the law can be successfully edited.

“The court must decide whether Measure B remains 'operational' without the offending language,” he said. “Here, adult film actors must still use condoms. A permit is still required. Although the permit may not be modified, suspended, or revoked, fines and criminal charges may still be brought against offenders ….”

“While administrative searches cannot occur, nothing prevents law enforcement from obtaining a warrant to enforce Measure B,” he ruled. “Regarding fees, since there is no evidence that Measure B’s fees are revenue neutral, there is no reason to believe the department’s Measure B duties cannot be performed without fees — or performed at least until the fees’ defect is cured, either by enacting a new, constitutional ordinance or providing this court with evidence of revenue neutrality.”

Vivid and co-plaintiffs Kayden Kross and Logan Pierce filed their suit in January at U.S. District Court in Los Angeles, seeking to topple Los Angeles County's Safer Sex in the Adult Film Industry Act, which was approved by voters in November. The AHF was the sole sponsor of Measure B.

Vivid co-founder Steven Hirsch said he was disappointed in Pregerson's ruling.

"We continue to believe this unfunded mandate infringes upon our freedom of speech, and we will continue our fight by filing an immediate appeal to this portion of the court's ruling," Hirsch said in a statement Saturday.

View Pregerson's ruling