Judge Hears Arguments on TRO Against Measure B

LOS ANGELES—It was somewhat strange sitting in Courtroom 3 of the U.S. Federal Courthouse in downtown LA this afternoon, witnessing Judge Dean D. Pregerson hear arguments as to whether plaintiffs should be issued a temporary restraining order (TRO) to prevent the requirements of Measure B—the so-called "condoms in porn" law—from taking effect. Strange because one side of that argument was being presented by AIDS Healthcare Foundation (AHF) attorney Samantha Azulay, when last week's U.S. Supreme Court ruling in Hollingsworth v. Perry made it crystal clear that AHF has no place as a litigant in this case.

But that, apparently, would be an argument for another day, as Judge Pregerson asked First Amendment attorney Paul Cambria, representing Vivid Entertainment Group along with H. Louis Sirkin who was also present, to state his case for the TRO—and Cambria, being at least as conversant with Hollingsworth as the judge had to be, noted that he would present arguments not only on the reasons for the TRO, but also why AHF should not be allowed to participate any further in the case.

But the judge would have none of that discussion. "That issue is well-briefed," he said, indicating to Cambria that he was only interested in argument on the TRO.

Cambria began by noting that Measure B is unconstitutional due to the fact that it is a content-based restriction on First-Amendment-protected expression—that is, the making of a sexually explicit adult movie.

Judge Pregerson, however, wasn't about to accept that statement at face value, asking Cambria to clarify just what that "expression" was. Then, when Cambria stated that it was about making adult movies and the content of those movies, and how a requirement that condoms be worn would affect that content, Judge Pregerson asked that he clarify the difference between the fact of a movie's existence and what its message was.

Cambria began to describe how forcing performers to wear condoms would prevent producers from making certain types of movies—he later gave the example of how a husband and wife might want to have a child, and with the husband impotent, the wife enlists his bowling team to impregnate her, and with pregnancy the key plot point of the movie, forcing all sex scenes to have condoms would defeat the entire message of the movie.

But Judge Pregerson seemed to want to distinguish the requirement to wear condoms from the requirement in some other states that adult nightclub performers wear pasties over their nipples, and wouldn't that affect the message of the dance? Cambria replied that while the state liquor authority might exercise some restraint over dancers' performances because the fact that alcohol was being served gives them that authority, he noted that it is completely legal to make non-obscene sexually explicit movies in Los Angeles County, but that Measure B restricts what the message(s) of those movies would be by requiring that all depictions of intercourse be condomized, a requirement that, he said, would prevent adult filmmakers from delivering the message they wanted to deliver.

Upon further questioning by the judge, Cambria elaborated that not only does Measure B curtail possible storylines like the pregnancy one noted above, but that it would be impossible to make, for instance, a period film involving "swashbucklers" or pirates because condoms hadn't even been invented in those days, and viewers would find it jarring to see 16th century characters sporting 20th century condoms. He further noted that pornographic films are protected by the Constitution, and he referenced the recent case of U.S. v. Stevens to note that even "reprehensible" storylines like dog-fighting or the crushing of small animals are protected, even if the activity that underlies such a movie—i.e., fighting dogs, or killing defenseless hamsters—might be illegal under other statutes.

But couldn't the same stories be told without showing condoms, the judge asked. No, Cambria replied, because the First Amendment doesn't allow the state (or the county) to tamper with the content of a First-Amendment-protected form of expression, and he agreed with the court that under the doctrines of either strict or intermediate scrutiny, the government had no place in trying to tell producers how they had to tell the story they wanted to tell.

The judge then asked whether a producer's wish to make a movie featuring a person walking nude in downtown Los Angeles would mean that all laws regarding public lewdness were necessarily unconstitutional also, but Cambria countered that while such a nude walk could be accomplished with special effects like a green screen, two (or more) people engaging in sexually explicit conduct including ejaculation could not be simulated even with careful editing. He then returned to his primary point, which is that a statute cannot ban conduct which is lawful... which is exactly what Measure B does: It creates a government-sponsored form of prior restraint which forces a producer, before the first frame of a movie is shot, to obtain a public health permit, which under Measure B is the only way to obtain a shooting permit, it charges a fee for such a permit that at present is undetermined (and therefore unconstitutionally vague), it requires training in dealing with bloodborne pathogen situations—and that there currently exist no standards for what that training should entail, nor who is qualified to approve such training—and it requires not only that the particular movie then being shot present its message in a certain approved way, but if the county health inspector determines that the movie is being shot improperly, he or she can pull the producer's health permit entirely, thus preventing the producer from making any movies at all until the permit issue is settled.

Cambria also noted that Measure B targets only the adult industry, and thus is clearly a content-based restriction of expression, which in order to survive the strict scrutiny to which it should be subjected would have to show that it both furthers a compelling governmental interest that must be narrowly tailored and is also the least restrictive means of doing so—two requirements that Cambria argued Measure B could not meet.

But when Judge Pregerson raised the question of whether any of the offending parts of Measure B could be severed from the original legislation, Cambria replied that not only are the problem areas endemic to the law itself, but that the courts are not allowed to rewrite legislation simply to attempt to expedite its enforcement.

Judge Pregerson then allowed Azulay to state AHF's case for allowing Measure B to remain in effect during the pendency of the litigation, but when she began by claiming that failure to do so would result in "irreparable harm" to performers, he asked her instead to respond to Cambria's First Amendment concerns.

However, when Azulay essentially said that she doesn't see what all the fuss is about, since both CalOSHA regulations and the California Health Code, particularly Section 5193, already mandate that condoms be used in porn production, Judge Pregerson asked her if she was aware of any cases where those existing codes had ever been enforced against an adult producer? After hemming and hawing a bit, she admitted that she was not aware of any such case, but that she was aware of several investigations regarding whether those regulations had been followed.

Azulay also claimed that no conduct was being curtailed by Measure B, adding later that she believed that the sex could be simulated without impairing the message, or that green-screening could be used to remove the condoms from the finished film. She also referenced the case of City of Erie v. Paps A.M., in which the Supreme Court upheld a Pennsylvania restriction on nude dancing, saying that the real question was whether the suppression of the dancers' erotic speech was related to the dancers' conduct or their expression—an echo of Judge Pregerson's previous inquiry.

But when the judge asked how to tell whether Measure B was restricting expression or conduct, Azulay began by claiming that the "findings" in the preamble to the law stated that the prevalence of STDs was a concern to LA County—but the judge cut her off, noting that those "findings" were not made by a governmental body, and that she should answer his question instead. Azulay then argued that the Measure B issue should be viewed as a "balancing test" between protected expression and the county's wish to stop the spread of STDs, and in response to the judge's further questioning, claimed that adult movies could easily tell their stories even with condoms by using careful editing and green-screens.

But several observers of the hearing were awestruck when Azulay argued that Measure B's restraints on speech and requirement for a health permit before shooting could begin were constitutional because, "Suppose I want to redo my garage, which requires a permit?" In other words, that remodeling job might be considered a form of expression as well.

There was also some discussion of whether, if Measure B remains in effect, producers could continue making movies or whether they first needed a permit. Azulay said they would need the health permit, but that it was easy and quick to get—and that producers have six months to "get up to speed" on the training required to keep the permit. However, on further questioning, she admitted that any adult productions that did not use condoms would be in violation of Measure B.

Regarding the plaintiffs' claim that Measure B is overbroad, she responded that it applies to mainstream producers as well as adult, but noted that blood or other infectious materials on a mainstream set happen by accident, but that in porn, the sex is planned so that semen is present.

When it again came Cambria's turn at the rostrum, he seized on the underinclusiveness of Measure B, saying that there were no plans to require mainstream producers to obtain health permits, so the measure was clearly directed only at the adult industry.

But what if, say, Paramount or Universal decided to make an adult movie; wouldn't it apply to them as well, Judge Pregerson later asked.

"That's exactly my point," Cambria replied, noting that the judge's very use of the term "adult movie" showed that the measure was targeted solely at adult sexual speech. He cited a case which found, "If a statute describes speech by content, it's content based."

Cambria also noted that there were no existing cases where CalOSHA had tried to implement mandatory condoms while a film was being shot, but he noted that they had filed notices of violation for movies that were already completed and released for sale. This, he argued, was CalOSHA's proper role, not the prior restraint of preventing movies without condoms from being shot at all.

Cambria them moved on to his Fourth Amendment arguments, noting that Measure B gives the health department inspectors the power to enter a premises, even a private home, where  "commercial sexual activity" was taking place without probable cause, as the Fourth Amendment requires, and even to seize materials being used in the making of the content without a warrant. He also deemed Measure B to be an "invasion of the creative process," which he said was a First Amendment violation.

Judge Pregerson then raised the issue of whether Measure B could be viewed simply as a type of zoning regulation, but Cambria countered that zoning restrictions are based on alleged secondary effects caused by the zoned business, so that argument wouldn't apply to adult. The judge then asked if STD transmission could be considered a "secondary effect" of adult filmmaking, but Cambria argued that under strict scrutiny, that would not be a sufficient reason to uphold the law. He also noted that the statute only applies to Los Angeles County, and that if its purpose was to curtail disease, it doesn't serve that purpose, since even AHF had admitted that adult producers could simply shoot movies outside the county. Rather, the "purposes" it serves are "curtailed expression" and alteration of the material's message.

The judge then allowed Azulay to respond, but she continued to push her "balance of harms" argument, saying that a performer's interest in not being infected balanced a producer's interest in creating a certain storyline in a movie. She also argued that movie sets could be inspected under Measure B without violating the Fourth Amendment because the adult industry was "highly regulated"—an argument identical to one of the ones used at the recent trial in Philadelphia over the federal recordkeeping and labeling law, 18 U.S.C. 2257.

But when Judge Pregerson noted that plaintiffs were concerned about their Fourth Amendment privacy rights under Measure B, Azulay charged that that concern was hypothetical, since no such violations had yet taken place, and that we don't invalidate laws in response to hypothetical situations.

"Yes, we do," Judge Pregerson disagreed. He also appeared to agree with Cambria that Measure B only pushes the "STD problem" out of LA County—and urged the parties to try to settle the matter out of court. (He also appeared to be of the mistaken impression that STD testing in the industry might not find an HIV infection until several months had passed.)

Azulay summarized her point as, when self-regulation of the industry fails, then outside regulation is necessary, but the judge countered that if Measure B simply pushes the STD problem out of the county, then nothing is really solved.

Cambria got the last word, noting that all of AHF's "findings" as stated in Measure B's preamble had been refuted in plaintiffs' briefs, that their "secondary effects" argument fails because there would need to be a finding that such secondary effects exist, but that no such findings are contained in Measure B, and that in any case, secondary effects are not content-based, though Measure B clearly is.

With that, Judge Pregerson adjourned the case, but did not indicate when he might rule on the TRO.

"We were pleased that the judge had read all of the materials and had a good grasp of the issues under discussion," Cambria said after the hearing had concluded. "We look forward to moving on with the case, and hope the judge embraces our arguments."

"We are pleased that we had the opportunity to argue the case," added plaintiff Steve Hirsch, who attended the hearing with his sister Marci. "It was clear the judge was extremely knowledgeable as to the facts and we look forward to moving ahead."

Also in attendance at the hearing were Free Speech Coalition CEO Diane Duke and Membership Director Joanne Cachapero, as well as attorney Allan Gelbard and others.