Judge Pregerson Issues Split Decision on Measure B

LOS ANGELES—U.S. District Court Judge Dean D. Pregerson issued a ruling today in Vivid v Fielding that upholds the constitutionality of mandatory condoms while striking large chunks of the new Measure B law that gave the County too much discretionary power in terms of revoking permits, conducting warrantless searches and even charging a fee for permits.

Vivid Entertainment and adult performer Kayden Kross sued County officials in January, seeking to have the law invalidated and enjoined on First Amendment and other grounds. The judge ruled today on the plaintiffs' motion for a preliminary injunction and the intervenors' motion to dismiss, denying and granting in part for each, and vacated the plaintiffs' motion for judgment on the pleadings.

In an early analysis of the ruling, attorney Michael Fattorosi wrote, “In short, we still have to contend with Measure B, but the fees are gone, the searches are gone, the permit stays but it cannot be suspended or revoked without a proper court proceeding and thus producers cannot be forced to ‘shut down’ and prevented from shooting other movies.”

Fines and other sanctions can still be levied against producers, but only after judicial review, which means that enforcing the law will now be more complex and expensive for city and county officials because of this ruling.

One interesting proviso in the judge's order, however, is that in striking the language that permits health department inspectors from revoking health permits without a hearing, it also strikes the ordinance's only reference to §5193 of the Health Code, which is the section that requires adult performers to use far more "barriers" than simply condoms. What is unknown at this point, however, is whether a hearing on a permit revocation might produce a ruling that effectively reinstates that section of the ordinance, thus forcing a defendant producer to use even more extensive "barrier protections" than the mandatory condoms which Judge Pregerson, in describing the purpose of Measure B as a "condom-focused" ordinance, has upheld.

Judge Pregerson also had a problem with Measure B’s definition of what constitutes an “adult film.” Specifically, he wrote, “Although Plaintiffs have not raised the issue, the following clause of the ‘adult films’ definition is problematic: ‘and/or any other sexual activity that may result in the transmission of blood and/or any other potentially infectious materials.’ The use of ‘or’ indicates that filmed ‘sexual activity’ that ‘results in the transmission of . . . other potentially infectious materials’ requires a Measure B permit. Sexual activity could mean many things. Potentially, kissing could qualify, as saliva may contain infectious materials. Therefore, the portion of adult film’s definition discussed in this footnote is unconstitutionally overbroad and vague.”

Perhaps anticipating a negative reaction to his ruling, and all but admitting that he has defanged the new law, Judge Pregerson ends his 34-page ruling with a suggestion that Measure B supporters should be satisfied that the core provision of the law was left intact. “Here,” he writes, “in light of Measure B’s stated purpose of preventing the spread of STIs and for the reasons discussed above in the operational analysis, it seems that those who ‘favored [Measure B] would be happy to achieve’ what remains of it.”

That message was directed not just to the main sponsor of Measure B, AIDS Healthcare Foundation (AHF), but to the electorate who passed Measure B, who he ruled are presumed by the court to be “happy to achieve at least some substantial portion of their purpose.”

Indeed, AHF president Michael Weinstein did sound happy with the ruling that upheld four of the seven counts contained in the Vivid lawsuit. In a statement issued this evening, he said, "Today's ruling that requiring condoms in porn is constitutional is just a tremendous, tremendous victory, one that will go a long way to safeguard the health and safety of those adult performers working in the industry.”

For its part, plaintiff Vivid Entertainment, through its co-owner Steve Hirsch, stated, in response to the judge's decision, “We won most everything we sought to be determined unconstitutional with Measure B. We are, however, disappointed the Court found it necessary to rewrite a portion of the Measure in order to salvage a small portion of the measure and refused, at this time, to accept the adult industry’s own regulations by imposing an unfunded mandate upon the County by AHF.

"We continue to believe this unfunded mandate infringes upon our freedom of speech," he added, "and we will continue our fight by filing an immediate appeal to this portion of the court's ruling."

Judge Pregerson's ruling can be read here.