AHF Files Opposition to Plaintiff’s Motion in Measure B Case

LOS ANGELES—Intervenor AIDS Healthcare Foundation on Monday filed an Opposition to Plaintiff’s Motion for Preliminary Injunction and other supporting documentation in Vivid Entertainment v. Fielding, the lawsuit filed in January by Vivid and adult performers Kayden Kross and Logan Pierce challenging the constitutionality of Measure B, the county ordinance enacted by voters last November that mandates the use of condoms and other barrier protection by adult performers.

The 26-page Intervenor’s Opposition refutes claims made in the plaintiff’s May 29 Motion for Preliminary Injunction, which argued that Measure B is content-based censorship, violates due process, imposes prior restraint on studios and performers, is both under- and over-inclusive and unconstitutionally vague, was improperly adopted via popular referendum, is preempted by state law and/or CalOSHA regulations, and will create immediate and irreparable harm to the plaintiffs if the court does not grant a preliminary injunction.

In support of its point-by-point refutations, most of which repeat arguments made previously in its Motion to Dismiss, AHF also filed a Request for Judicial Notice Monday that contains several attached exhibits, including a CBS News article (Exhibit I) concerning the 30-day jail sentence recently imposed on adult performer Mr. Marcus after he pleaded “no contest” to a misdemeanor charge of knowingly exposing other performers to syphilis.

The Marcus incident is specifically used by AHF in its Opposition filing to argue that “Plaintiffs’ claimed attempts at ‘self regulation’ and ‘voluntary compliance’ to protect against STD exposure have not been successful.”

The other supporting documentation filed in support of its Intervenor’s Opposition consists of relevant county or municipal codes, a 2013 CNBC news article about Wicked Pictures’ use of condoms, and letters from County Health Department chief Dr. Jonathan E. Fielding and CalOSHA staff counsel James D. Clark.

If one were to pull a section from the Intervenor’s Opposition that encapsulates AHF’s argument, it might be, “Measure B does not regulate the content of films that may be shown in Los Angeles County. Therefore, there is no expressive harm stemming from Measure B. The only ‘harms’ from Measure B are the alleged monetary costs to a filmmaker in complying with Measure B and/or with moving his production outside of Los Angeles County. This ‘harm’ is far outweighed by the harms to the residents of Los Angeles County should Measure B be enjoined.

“Should Measure B be enjoined,” it continues, “an effective method of preventing STD infection also will be enjoined, which will have a deleterious impact on public health. The disproportionate incidence of STDs among performers who engage in sexual intercourse during the production of films in Los Angeles County is up to ten times that of the general population, and these infections do not stay just within the performer community.”

Intervenor’s Opposition to Plaintiff’s Motion for Preliminary Injunction can be read here.

Intervenor’s Request for Judicial Notice can be read here.