AHF, Seeking to Remain in Vivid Lawsuit, Files Answer Brief

PASADENA, Calif.—Less than a week after Vivid filed its brief with the Ninth Circuit U.S. Court of Appeals seeking, in part, to remove AIDS Healthcare Foundation (AHF) and its employees and supporters from their role as Intervenors in Vivid's Measure B lawsuit, AHF filed a brief in answer to Vivid's objections, which brief includes attempts to argue the merits of Vivid's appeal even as AHF's role in the case moves to even shakier ground.

Indeed, the first six pages of AHF's brief, which recaps AHF's reasons for seeking to have Measure B passed into law and includes a skewed perspective on performers' exposure to HIV and STDs while filming adult movies, are clearly intended to prejudice the Ninth Circuit panel into allowing AHF to remain in the case by suggesting that if it isn't allowed to stay, STDs will run rampant in Los Angeles County.

"Heeding Dr. Fielding’s findings and conclusions regarding the adverse public health impact of adult film production, concerned citizens and organizations in Los Angeles sought to persuade County government to take effective action to protect the public health by requiring the use of condoms when filming scenes of actual sexual intercourse," AHF's brief claims. "The County bureaucracy, however, was unwilling to take action. The advocates then sought to compel County action via petition to State court for a writ of mandate, arguing that under California Health and Safety Code Sections 120175 and 120575, the County had a ministerial duty to take further steps to protect the public health. The advocates were unsuccessful in that effort."

The "concerned citizens and organizations in Los Angeles" were, of course, AHF and its employees and supporters, as well as a couple of other organizations like UCLA's AHF-affiliated Reproductive Health Interest Group, the Centers for Disease Control and Beyond AIDS that, at AHF's invitation, attended hearings held over a two-year period by CalOSHA on AHF's petition to change the California Health Code to require condom use in adult film production. It was the alleged inaction by both CalOSHA and the Los Angeles County Department of Public Health that allegedly inspired AHF to form a petition drive to get Measure B on the November, 2012 ballot.

AHF's brief then recounts the proceedings thus far in front of U.S. District Judge Dean D. Pregerson—and includes one interesting change: No longer do AHF and its co-Intervenors describe themselves as "Intervenors"; they now use the word "proponents," a term that is supposedly used "[p]ursuant to California law," since it was solely AHF and its "Campaign Committee Yes on B" that sought to bring Measure B to the ballot in the first place. But a "proponent" is not a recognized party to a legal case.

Once AHF gets around to its actual arguments, though, they turn out to be, for the most part, a direct attack on the U.S. Supreme Court's ruling in Hollingsworth v. Perry, which stated that then-plaintiff Dennis Hollingsworth had no standing—that is, no "concrete and particularlized injury"—with which to defend California's Prop 8, which forbade same-sex marriage in the state.

"Standing must be established by one of the parties invoking the federal court’s jurisdiction to remedy that party’s injury," AHF's brief claims. "Once a party invoking the court’s jurisdiction establishes its standing, the court has been presented with a justiciable case or controversy that it has an obligation to resolve. Consequently, there is no need or requirement for any other party to demonstrate standing for that case or controversy." [Emphasis in original]

However, that's not the way the Supreme Court sees it. As Vivid's attorneys noted in their reply brief filed last week, "Putative Intervenors’ Response is undermined entirely by Hollingsworth’s simple command that 'a litigant' must show, first and foremost, that he is affected by a matter in a 'personal and individual way,' and possesses a '"direct stake" in the outcome' of a case in order to participate as a party. The Court in Hollingsworth did not say a 'plaintiff' or an 'appellant' must satisfy Article III, but rather, that a 'litigant' must do so. This nullifies AHF’s effort to draw a negative inference that Hollingsworth does not apply to appellees."

Moreover, AHF argues that it should be allowed to remain as a party in the case specifically because it has no standing!

"Vivid argues that defendants and appellees must demonstrate that they have standing, just as plaintiffs and appellants do," AHF's brief argues. "But what can that mean? Standing is 'a "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."' Defendants qua defendants do not have injuries—they are alleged to have caused them. That is why defendants are not required to demonstrate that they have standing."

Indeed; one section of their brief is entitled, "Intervention Was Required Because There Is No Other Party To Defend The Constitutionality Of Voter Passed Measure B"

So: AHF admits that it has no standing to bring ("invoke") a case involving Measure B because it has not and will not suffer any injury if Measure B is overturned, but that it should be allowed to continue in the litigation because, as a "Defendant-Intervenor," it is alleged to have "caused" the injuries Vivid is alleging in the suit! But that brings us right back again to Hollingsworth, because clearly, AHF and its employees and supporters did not directly cause the injuries claimed by Vivid; they simply got the law that did the damage passed by the LA County electorate... and therefore even by that argument, AHF has no place in the case under Hollingsworth because it's not AHF's job to speak for the electorate; that's the job, as advocates for the law, of the county—and if the county feels, as it obviously does, that Measure B is unconstitutional and/or an unnecessary drain on county resources, and for those reasons declines to defend the law, AHF has no standing to step in and be the (claimed) "voice of the people." That's exactly the position Dennis Hollingsworth claimed to have, and which the Supreme Court struck down!

Or as Vivid's attorneys pointed out in their prior brief: "The ramifications of this sweeping view are stupefying. Under that rule, so long as, e.g., a plaintiff has standing to challenge a statute, regulation, ordinance, or other law—which will always be the case as a matter of course, for a court to have jurisdiction—any member of the public who stands to benefit from the law’s operation may also enter the case as a party under F.R.C.P. [Federal Rules of Civil Procedure] 24. But, of course, that is not the law, and were there previously any question, Hollingsworth has put it to rest."

Legally speaking, that's AHF: "any member of the public."

Other arguments presented by AHF in its brief include the argument that mandating condoms is constitutional and not a First Amendment issue, and that the court could rewrite the law to remove troublesome language (like Measure B's reliance of Section 5193 of the Health Code).

As to that first issue, AHF invokes the Supreme Court's decision in Renton v. Playtime Theatres to claim that condoms (and the other required "barrier protections") are simply some sort of "time, place and manner" restrictions on adult movies, even though movies with condoms have significantly lower sales rates than those without. But for AHF, condoms are just "secondary effects" that only affect the "manner" of an adult movie, much in the way Barnes v. Glen Theatre only affected the "manner" of topless dancers by requiring them to wear pasties and g-strings. (Hmmm... wonder what those dancers' tips are today?) In making this argument, AHF seeks to place mandatory condoms on the same continuum that prohibited nude dancing altogether in some states, and required dancers to stay six feet away from patrons in others.

AHF further seeks to legitimize Measure B by claiming that it is necessary to protect the public from becoming infected with STDs by performers, and claims that a 2009 County Public Health report supports that. However, the adult industry had its own analysis made of that report, by Dr. Lawrence S. Mayer of Johns Hopkins University Bloomberg School of Public Health and School of Medicine, and his findings indicate that the county had no basis for the conclusions in its report.

Finally, AHF argues that if there are problems with Measure B, they could be fixed by allowing the courts to strike certain language from the bill, much as Judge Pregerson, in his last Order in the case, kept the condom mandate intact but struck down the county's Measure B-granted ability to pull shooting permits without a court hearing. However, the Supreme Court has ruled several times, including in U.S. v. Stevens, the dog-fight videos case, that the courts may not rewrite legislation under the guise of simply pruning it, because it's Congress's job (or in something analogous to the Measure B case, the job of the county supervisors) to write laws, and the courts must assume that the lawmakers meant what they said in the laws that they pass. And in the opinion of several adult industry attorneys, Measure B is so poorly written that even Judge Pregerson's disavowal of some of its more oppressive clauses can't save the overall bill from being found unconstitutional—even if, as AHF claims, voters would have passed a stripped-down bill just as readily as they passed Measure B.

At this juncture, the Ninth Circuit has heard the arguments from both Vivid and AHF, and though there is no set time within which it must render its decision, check back periodically with AVN.com for more analysis of this vitally important legal proceeding.

AHF's Answer Brief can be found here.