Vivid Files Measure B Reply Brief to 9th Circuit

LOS ANGELES — Vivid Entertainment attorneys once again filed court papers with the 9th U.S. Circuit Court of Appeals seeking for the court to dump the district court's earlier finding over its request for a preliminary injunction and toss the AIDS Healthcare Foundation as intervenors in the appeal.

Vivid's 26-page reply brief, filed Friday in response to a previous AHF brief, put an emphasis on the porn studio's contention that the AHF shouldn't be allowed as intervenors in an action where there already is a defendant.

Measure B was passed almost one year ago — Nov. 6, 2012 — by voters, who green lighted the “Safer Sex in the Adult Film Industry Act” that requires the use of condoms in the production of adult movies in Los Angeles County.

"It is not as though there is no defendant or appellee in this case —  [Los Angeles] County, et al., are proper party defendants/appellees," Vivid attorneys argued. "That the county has opted not to raise arguments, [the AHF wishes] to see put forward is not sufficient to grant party status to those who lack an interest undifferentiated from any other member of the general public.

"Indeed, the county filed an answer and issued a letter saying it was authorized to 'take appropriate measures to enforce' Measure B," Vivid attorneys said.

Vivid also pointed to the assertion by the AHF that that portions of Measure B are “severable," contrary to what AHF claims. The district court held that the licensing requirements of Measure B operates as a prior restraint that generally lacks procedural safeguards is in most respects not narrowly tailored and gives the county unbridled discretion, Vivid attorneys said.

"[The district court] upheld certain portions of Measure B only after revising its definitions and substantive reach," Vivid attorneys said. "This plainly violates the rule that courts cannot  rewrite a … law conform it to constitutional requirements.”

"This court recently recognized that the doctrine of severability is 'inapplicable' where a 'provision encompasses both valid and invalid restrictions of free speech and its language is such that a court cannot reasonably undertake to eliminate its invalid operation by severance or construction," said Vivid attorneys, citing a 1968 9th Circuit ruling, Acosta vs. City of Costa Mesa. "[T]he remnants of Measure B that the district court preserved do  not satisfy the test for severability, which under California law requires the text severed to be “volitionally, grammatically and functionally severable.”

It is unclear any time frame the 9th Circuit will render a decision on Vivid's appeal.

Vivid, along with co-plaintiffs Kayden Kross and Logan Pierce, filed an appeal with the 9th Circuit in September after they were denied a preliminary injunction over Measure B  by U.S. District Court Judge Dean Pregerson in Los Angeles. 

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