LOS ANGELES — Los Angeles County officials yesterday signed off on a settlement with Vivid Entertainment, which challenged in a federal lawsuit the constitutionality of the Measure B requirement for porn performers to wear condoms.
The settlement was announced by the Los Angeles County Board of Supervisors following a closed-door session of the board during their weekly Tuesday meeting, according to City News Service.
The suit was initiated after Vivid Entertainment sought to block implementation of the county’s 2012 Measure B ballot measure that was eventually approved by 56 percent of voters.
With Measure B, adult filmmakers with productions in Los Angeles must require the use of condoms in all vaginal and anal sex scenes. The law goes further, requiring producers to obtain a health permit prior to production and to post the permit and a notice to performers regarding condom use during production.
Vivid Entertainment had argued that Measure B, formally called “County of Los Angeles Safer Sex in the Adult Film Industry,” violated First Amendment rights and was unnecessary in an industry that already has protocols in place to protect its performers from STI transmission.
The AIDS Healthcare Foundation acted as intervenors in the suit, insisting that the protocols weren’t enough.
U.S. District Judge Dean Pregerson struck down portions of the law, including a $2,000 to $2,500 permit fee, but upheld the constitutionality of requiring condoms in adult films and any fee that was “revenue neutral” to cover enforcement costs. He denied Vivid Entertainment’s motion for a preliminary injunction.
Vivid Entertainment appealed Pregerson’s ruling that upheld the measure, and in December 2014 the 9th U.S. Circuit Court of Appeals affirmed the federal jurist’s order denying a motion to overturn the ordinance.
The 9th Circuit, however, held that Pregerson did not abuse his discretion in declining to enjoin the enforcement of Measure B’s condom mandate.
Yesterday, county supervisors did not offer any details of the settlement; however, the AIDS Healthcare Foundation’s president, Michael Weinstein, earlier told XBIZ that the agreement means Vivid will no longer legally challenge the constitutionality of Measure B; that AHF and the county will not challenge the parts of the decision that limit inspections; and that the county will do a study to determine what the fee for the health permit should be.
Industry attorney Paul Cambria, who is litigating the case on behalf of Vivid Entertainment, did not confirm or deny Weinstein’s assertion to the settlement because court papers haven’t been signed over the accord. But he said that the studio will offer a statement soon on the matter.
“When all parties have signed we will explain what the status of the litigation and [what] the law is,” he told XBIZ.
Pregerson, who is presiding over the suit, is slated to sign off on a settlement between the parties within 30 days.
Weinstein, in a statement last night, said that “by declining to pursue their lawsuit any further, the porn industry has thrown in the towel on Measure B.”
However, Eric Paul Leue, the adult trade group Free Speech Coalition's executive director, said that Weinstein's statement was disingenuous.
"The settlement has not yet been signed by all parties involved," Leue told XBIZ. "AHF's press release is, as always, premature and sensationalistic. The industry is far from having 'thrown in the towel' and we commend Vivid for having fought such a successful fight."
Last month, the adult industry scored a big victory over new condom and bloodborne pathogens requirements, created and advocated by the AHF, that were weighed by the state Occupational Safety and Health’s Standards Board in Oakland, Calif., in front of more than 100 performers who trekked up to the Bay Area to add their voices to the five-hour discussion.
By a 3-2 vote (four votes were needed for it to pass) the Standards Board chose to not move forward with the proposed § 5193.1 (California’s Code of Regulations) that not only required condoms for all filmed sex but also "barrier protection for eyes, skin, mouth and mucous membranes."
But after the Oakland victory, the AHF drafted and submitted another plan to the Standards Board, which plans to review it and report its direction over it within six months.
In the direct eye of another battle, the adult industry has its radar on one more existential threat — the AHF’s California porn-condom voter initiative, which cost the organization a reported $1.5 million to be placed on the statewide ballot.
If California voters approve, the proposal would require performers in adult films to use condoms during shoots and require producers to pay for performer vaccinations, testing and medical examinations related to STIs.
The ballot proposal also forces producers to obtain state health license at beginning of filming and to post condom requirements at film sites.
For violations, the ballot proposal also imposes liability on producers, distributors, performers if they have a financial interest in the violating film, and on talent agents who knowingly refer performers to noncomplying producers.
