Measure B Plaintiffs Ask Ninth Circuit to Remove AHF From Case

LOS ANGELES—In its brief filed today to appeal Judge Dean D. Pregerson's Order affirming in part and denying in part plaintiffs' motion for a temporary restraining order against the enforcement of LA County's Measure B, plaintiffs' attorneys Paul Cambria, H. Louis Sirkin, Robert Corn-Revere and other attorneys from Corn-Revere's firm, Davis Wright Tremaine, have specifically targeted Judge Pregerson's failure to remove AIDS Healthcare Foundation (AHF) and its employees and contractors as intervenors in the case, based on their lack of standing under the U.S. Supreme Court's ruling in Hollingsworth v. Perry.

"Putative Intervenors AIDS Healthcare Foundation and its employees and supporters, who were Measure B’s drafters and proponents, moved to intervene in the case," plaintiffs argue in the opening paragraphs of their appeals brief. "Over Vivid’s objection, AHF gained party status on April 16, 2013, under Circuit precedent that was later overruled by the Supreme Court in Hollingsworth v. Perry. AHF thus was allowed to intervene and file a motion to dismiss, to oppose the preliminary injunction motion that was pending when they became parties, and to offer into evidence, and seek judicial notice of, various materials. The County, having taken no position on AHF’s intervention, stated it would 'not take a position on the merits of the [m]otions.'

"After pleading closed on the dismissal and preliminary injunction motions, and following a District Court hearing, the Supreme Court issued its Hollingsworth decision. Vivid immediately sought reconsideration of the order granting AHF’s intervention. While AHF effectively conceded Hollingsworth prevents them from intervening as parties on appeal, they argued Hollingsworth did not preclude their intervention at the trial stage of the proceedings." [Citations removed here and below]

With that vital issue squarely before the appeals court, plaintiffs discuss Measure B's effects on the legal adult film industry in California, beginning with the fact that the new law directly targets the Constitution's guarantee of free sexual expression.

"As Measure B recites, the 'production of sexually explicit adult films is legal in ... California'," the brief notes. "Nonetheless, despite this lip service to the 'legality' of adult films, Measure B imposes on them a system of prior restraints in the name of 'public health,' without regard for producers’ and performers’ expressive rights protected by the First Amendment."

The brief goes on to inform the appeals judges of the testing and reporting regimen that has been adopted by "adult film entities and their trade associations," the most recent iteration of which is Free Speech Coalition's Performer Availability Screening Service (PASS).

"No law-abiding producer would allow a performer to participate in an adult film without a current negative-test confirmation," the attorneys assure, "and no performer would agree to film without confirming all co-performers’ negative test status."

Plaintiffs also note that even the county's own "Five-Year Comprehensive HIV Plan," issued in March of this year and attached as an exhibit to the brief, "does not seek any measures such as those mandated by Measure B, but rather appears to have as its goal more testing and screening of the general population, i.e., exactly what the adult film industry already does for performers," adding, "It is against this backdrop that Measure B was proposed and enacted."

Indeed, one section of the 165-page Five-Year Comprehensive HIV Plan deals with "High Risk/High Burden Populations—By Risk Category," and nowhere is "adult performer" mentioned as a member of that group, nor in the section on "Emerging Populations" expected to be at risk, though "Sex workers/sex for exchange" are listed as a "Population of Interest," though no more is said of that.

"[G]ay and non-gay identified men who have sex with men (MSM) bear the largest disease burden of any population in LAC," that section of the report begins, referring to Los Angeles County. "As of December 31, 2011, there were 33,526 MSM living with HIV/AIDS; there are an additional 2,804 MSM who also have a dual exposure of injection drug use (IDU). MSM represent 76.4% and MSM/IDU 6.4% of LAC’s HIV epidemic (82.8% total)). Thus, four of every five PLWH [persons living with HIV] are a gay or non-gay identified MSM. Between 2008 and 2011, HIV/AIDS prevalence among MSM and MSM/IDU increased by 15.8% (13.1% and 2.7% respectively) to a total of 3,946 persons (3,872 MSM and 74 MSM/IDU).

"In 2011, heterosexual transmission accounts for the second largest number of PLWH in LAC (4,700 or 10.7%); this represents an increase of 437 persons or 10.3% since 2008," the report continues. "Sharing of injection paraphernalia (i.e., needles or 'works') represents 5.5% of all PLWH; this population grew by 2.5% from 2008 to 2011. Including the MSM/IDU transmission category, IDU is the risk exposure for 11.9% of all PLWH. In addition to drug use, sharing needles for tattoos (e.g., within the prison population), or injecting other substances such as steroids, vitamins, and hormones, may also transmit HIV. Perinatal transmission from mother to child accounts for only 0.6% of all HIV/AIDS cases from 2008 to 2011."

Moreover, the county's report estimates that 18.1 percent of the county's HIV-positive people—roughly 10,500 persons—are undiagnosed, representing a far greater threat to non-HIV-positive citizens than does the biweekly-tested hetero adult performer population.

The brief quickly analyzes the genesis of Measure B for the appeals court.

"Putative Intervenors AHF et al. have a demonstrated animosity toward the adult film industry," plaintiffs state on page 7 of the brief. "For example, a staff member [Mark Roy McGrath] instrumental in drafting Measure B has made public statements that he would like to see adult filmmakers driven out of California. This AHF staffer also 'considers the adult industry "quasi-human trafficking,"' and has stated that 'I don’t give a shit about their jobs,' while questioning whether 'these [are] the types of jobs we need in California.'

"It was hardly surprising, then, that despite numerous and explicit protections for adult film under the First Amendment and California law, fastidiously followed and enforced industry protections for performers, and State laws and regulations governing workplace safety, AHF sought to have Measure B placed on the November 2012 ballot under California initiative law," the brief continues. "Measure B contains various purported 'Findings' about adult films and the spread of STDs, but as a ballot initiative proposed for enactment by referendum, they are not backed by any legislative record."

The brief goes on to detail the process by which adult movie producers must obtain a "public health permit" in order to practice their profession, the requirements to keep that permit in force, and the fees that must be paid in order to do so. It also notes the letter sent by LA County Public Health Officer Dr. Jonathan Fielding on December 14, 2012, which stated that his department had established "provisional" permitting fees of $2,000 to $2,500 per year, with plaintiffs further noting that, "it did not hold hearings, conduct analyses, or take other steps to establish those amounts."

The brief also discusses the effects of Measure B on the plaintiffs, noting that for Vivid, "being shunted from Los Angeles County has drastically impeded its production of adult films. It has denied Vivid access to facilities and services necessary to production—and that cannot be moved or found elsewhere, as they are tied to the non-adult film industry—and has affected the availability of performers, technicians, unique locations and sets, set dressing, and props. This impact translates directly into what Vivid is able to depict on film, and even has forced it to adjust its script-writing, and has otherwise intruded on its creative and editorial discretion. Measure B adversely affects how frequently Vivid can schedule production days, and the level of output the company is thus able to maintain."

Also affected, the brief says, are Kayden Kross's ability to work on adult films and to create content for her website, and that the law "reduces the frequency and quantity of productions in which [Logan Pierce] appears."

"In addition, insofar as the Performers are popular actors whose output is affected by Measure B, it diminishes their reputation and position in the industry—and, more importantly, with audiences." In other words, the performers' fans don't want to see them performing with condoms and whatever other gear may be required.

The brief next discusses the lawsuit's history in the district court, noting particularly that the named defendants, including Dr. Fielding, the County of Los Angeles and its district attorney Jackie Lacey, "claimed 'neutrality' on whether Measure B is constitutional, 'declined to defend,' and expressly stated they 'are not defending [its] constitutionality.' Notwithstanding this stance of 'neutrality,' the County took the position that 'they have no discretion' other than to enforce Measure B 'unless [it] is held to be unconstitutional or otherwise unenforceable'."

But Judge Pregerson permitted AHF and its affiliates to intervene in the suit, finding specifically that "[n]either the United States Supreme Court nor the Ninth Circuit has explicitly addressed" whether intervenors must "independently fulfill the requirements of Article III," otherwise known as "standing," and even after the Supreme Court's Hollingsworth decision, the judge refused to remove AHF from the case. The brief goes on to analyze Judge Pregerson's most recent Order, including his finding that Measure B is not "content-based," and therefore should only be subjected to intermediate scrutiny rather than the strict scrutiny argued for by plaintiffs, and that it was within his power to sever "Measure B's permit fees, provisions for revoking and suspending permits, and allowance for administrative searches" from the main body of the law.

In the brief's "Summary of Argument" section, plaintiffs argue that the judge essentially rewrote the law in order to uphold the condom requirement portion, that that decision was at odds with the court's finding that the measure did violate Vivid's First Amendment speech rights, that in any case the law was not "narrowly tailored" enough to withstand constitutional scrutiny, and that he should have thrown AHF out of the lawsuit based on the Hollingsworth decision, because "[h]ad AHF properly been removed from the case, it would have left as uncontroverted the evidence that, even under the District Court’s analysis, would have compelled preliminarily enjoining Measure B in full. Indeed, as the County did not participate substantively, Appellants’ motion would have been unopposed and should have been granted on that basis alone."

Regarding the unconstitutional vagueness of the ordinance, plaintiffs focus on the differences between Measure B's definition of an "adult film," which is "any film, video, multimedia or other representation of sexual inter- course in which performers actually engage in oral, vaginal, or anal penetration, including, but not limited to, penetration by a penis, finger, or inanimate object; oral contact with the anus or genitals of another []; and/or any other sexual activity that may result in the transmission of blood and/or any other potentially infectious materials," and the rewritten definition which Judge Pregerson used to uphold the non-enjoined portions of Measure B: "any [film] depicting 'sexual intercourse in which performers actually engage in vaginal or anal penetration by a penis'." Of course, several of the public meetings with the adult industry conducted by CalOSHA over the past three years centered on whether HIV was likely to be transmitted through oral-genital contact, and the general impression that came out of those discussions was that such mode of transmission was unlikely. Yet in order to "save" Measure B from invalidation, Judge Pregerson simply rewrote Measure B's definition to exclude "oral contact"—a constitutional no-no, and one which renders even that rewritten law void for not being narrowly tailored to accomplish the government's alleged purpose, not to mention is a prior restraint on constitutionally-protected sexual speech.

Moreover, even under the court's truncated definition, producers of solo masturbation and all-girl movies should be entirely exempt from Measure B's requirements; yet the court upheld the requirement for all adult movies: "No producer of adult films may engage in the making of adult films in Los Angeles County for commercial purposes unless that producer of adult films has a valid adult film production public health permit issued by the department."

As AVN previously noted, Judge Pregerson had written, "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."

"It is entirely incongruous for the District Court to hold, for example, that Appellants sufficiently pled that the condom mandate violates the First Amendment but, in the next breath, that they are not sufficiently likely to succeed on the merits of that claim as to have the condom provision preliminarily enjoined," plaintiffs argue. "If such a claim has been stated, it must be because a regulation targets speech, has an impact on that speech, and arguably violates the First Amendment if applied. This, at a minimum, raises a 'serious question going to the merits,' and insofar as it is a question affecting speech where irreparable harm is presumed, a preliminary injunction should follow."

There is also case law in California that states that "the provisions to be severed must be so presented to the electorate in the initiative that their significance may be seen and independently evaluated in the light of the assigned purposes of the enactment. The test is whether it can be said with confidence that the electorate’s attention was sufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absence of the invalid portions"—which clearly didn't happen in Measure B's case, since promoters of the statute instructed signature gatherers to tell potential signers that Measure B's purpose was to prevent HIV in LA County, and that it would apply broadly to mainstream productions as well as adult.

"Excising key clauses of the 'adult film' definition that defines Measure B’s breadth also excludes a potentially large portion of films that Los Angeles County voters were told would be covered," plaintiffs' appellate brief states. "Similarly, the mere act of getting a permit—all that is left of the permitting regime—does not prevent the spread of STDs, and there is no indication that voters would have enacted such an empty exercise. Each of these instances of inseverability 'taints the remainder' of Measure B."

The plaintiffs' strongest argument comes next: that the court relied on evidence and arguments presented, not by the defendants, but by intervenor AIDS Healthcare Foundation, which, by the time of Judge Pregerson's Order, had no standing whatsoever in the case, based on the Supreme Court's Hollingsworth ruling.

"Hollingsworth made clear that once a ballot measure is approved by voters, it becomes a duly enacted ordinance for which its proponents 'have no role—special or otherwise—in [its] enforcement' before the courts," plaintiffs' brief states. "Ballot proponents thus have no 'personal stake' in defending an enacted measure 'that is distinguishable from the general interest of every citizen' sufficient to give rise to Article III standing... Even where, as here, government officials decline to defend a passed ballot measure, the Supreme Court has never 'upheld the standing of a private party to defend [its] constitutionality,' and it 'decline[d] to do so for the first time' in Hollingsworth."

Dealing with AHF's claim that the Supreme Court "implicitly approved" AHF's role in the case because Hollingsworth allegedly did not "undercut prior authority indicating that interveners do not need to establish independent standing at the district court," plaintiffs note, "That conclusion directly contradicts the holding in Hollingsworth, and is thus error. The Supreme Court left no doubt that intervening parties must satisfy Article III at all stages of a case... Significantly... the Court in Hollingsworth did not emphasize that intervenors in that case were appellants. Instead, by stating that proponents of Proposition 8 lacked any 'personal stake in defending' once Proposition 8 was enacted, the Supreme Court made clear that the Hollingsworth intervenors had never had standing. As the penultimate paragraph of the decision noted, '[w]e have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,' a statement that is in no way limited to parties on appeal." [Emphasis in original here and below]

Based on that Supreme Court holding, plaintiffs here argue that nothing which AHF has presented to the court in this case should be given any weight whatsoever, since AHF had no standing in the case upon which to present evidence; hence the validity of the brief's section heading, "The District Court Improperly Relied on Evidence Proffered By Putative Intervenors in Denying the Motion for Preliminary Injunction." In other words, since AHF had no standing in the case, plaintiffs' motion for summary judgment in the case, much less its application for a temporary restraining order, should have been granted as unopposed.

"[B]ecause the County did not oppose the preliminary injunction motion, had Putative Intervenors been properly dismissed, the motion would have been unopposed in the first instance, and should have been granted on that basis alone," plaintiffs argue. "In fact, as Appellees made no arguments in support of Measure B below, and failed to cross-appeal, they have waived the ability to defend Measure B here. And, with AHF’s effective admission that they lack standing in this Court under Hollingsworth, this appeal is effectively unopposed."

Plaintiffs' final argument is that even by Judge Pregerson's own logic, he should have restrained the county from enforcing any part of Measure B's mandates, not just its ability to seize permits, stop filming in its tracks and deny a now-permitless producer the right to create more constitutionally-protected material without a court hearing, based on the fact that Measure B is unquestionably a content-based restriction on speech.

"Indeed, there was no real dispute below [in the district court] that whether a law is content based can be 'determined on [its] face,' or that, 'if [it] describes speech by content ... it is content based'," plaintiffs' brief states. "As such, the court should have applied strict scrutiny that it 'is rare [for] a regulation' to survive. In any event, regardless of the level of scrutiny applied, the provisions of Measure B that the District Court preserved are not narrowly tailored and are thus unconstitutional."

Plaintiffs' brief specifically targets the fact that Measure B is aimed at "adult films," and in fact, under Judge Pregerson's Order, just two particular sexual acts: Vaginal and anal intercourse.

"Even if Measure B does not require condoms to be seen on film, the condom requirement means that, to comply, producers must either show sex acts with condoms in view, shoot them so that condoms are not visible, or use after-the-fact digital trickery or edits to make the condoms 'dis- appear'," the brief argues. "Each of these cut directly to producers’ and performers’ expressive choices, and affects even how producers script movies, and the settings and moods they can evoke, as well as diminishing not only creative imperatives, but the level of output producers and performers maintain."

The brief goes on to argue that the court should have ignored the claims in Dr. Fielding's letter that "the purported harms Measure B claims to target are real and not conjectural" because "it contains no findings that allegedly higher incidents of STDs in the adult film industry have any impact on the health of the general population of Los Angeles County, protecting against which is Measure B’s stated purpose." Plaintiffs' attorneys then draw the Ninth Circuit's attention to the county's Five-Year Comprehensive HIV Plan, noting that it "does not even mention 'adult films,' 'pornography,' or any other activity Measure B targets."

"If the spread of STDs among and/or by adult film performers played any significant role in the incidence of HIV in the County, one would think that would warrant at least a mention in the Plan," the brief continues. "Rather, the Plan’s goal appears to be more testing and screening of the general population—that is, exactly what the adult film industry already does. Yet the District Court did not address this evidence in concluding that the DPH Letter’s disputed conclusions were 'compelling'."

Moreover, "The District Court wholly ignored Appellants’ showing that Putative Intervenors’ position concedes Measure B’s condom requirement will have no impact on the health of the general population of Los Angeles County," the brief further states. "Specifically, Putative Intervenors repeatedly noted that film-makers need only cross the Los Angeles County line if they wish to film condom- less scenes of vaginal or anal sexual intercourse. This makes clear that Measure B has no public health benefit, even accepting Measure B’s (incorrect) claims about transmission of STDs in adult films. Simply forcing producers to transport performer(s) to another county, and film them there, after which they return to Los Angeles County to intermingle with those in the general population—just as they would had they shot in Los Angeles County—produces no tangible health benefit. The District Court’s failure to address this point means Measure B fails the narrow tailoring requirement."

The brief also takes issue with the claim that the current adult performer testing regimen "may be ineffective," and therefore, mandatory condom use is the best alternative.

"If adult producers and performers can just cross County lines to film condom-less sex, the condom requirement does not 'target and prevent the spread of STIs'," plaintiffs argue. "If the condom requirement confers no benefit, the alternative of testing indisputably shows that a condom mandate (or having to maneuver to avoid it) is unduly burdensome."

Other arguments put forth regarding the statute's lack of narrow tailoring include its failure to define important terms like "adult film" (which even Judge Pregerson felt the need to rewrite), "producer of adult film," "principals," "management-level employees" and "commercial purposes," and the expressed doubt that the requirement that adult producers undergo bloodborne pathogen training, or even that they obtain health permits before shooting, "would advance any government interest."

"There is irreparable harm [in not fully granting the TRO] by definition, because 'loss of First Amendment freedoms, for even minimal periods ... unquestionably constitutes irreparable injury,' and in any event, Appellants’ uncontroverted declarations illustrate how Measure B drastically impedes the full exercise of First Amendment rights to produce constitutionally protected adult films," the final paragraph in this section of the brief reads. "The balance of equities tips in Appellants’ favor, as they will continue to suffer irreparable injury if the surviving portions of Measure B are not enjoined, whereas little or no harm will ensue if the County is enjoined from enforcing Measure B, given the testing regime and other safeguards adult filmmakers already follow to protect performers from STDs, and by extension, the public. Finally, as this Court has held, the public interest 'collapses' into Appellants’ showing of likelihood of success to favor a preliminary injunction against all the ways that Measure B infringes First Amendment rights."

Although plaintiffs' appellate brief was served on counsel for AIDS Healthcare, it remains unclear whether the Ninth Circuit will even entertain a response from that group, since it is bound by the Hollingsworth ruling not to consider them a party to the lawsuit. Of course, AHF might try to talk the County defendants into filing a response on its behalf under cover of that being the county's own response, but the Ninth Circuit would likely be able to see through that ruse easily.

One possible issue that could arise at the appellate level, however, is the makeup of the Ninth Circuit itself. The district court judge to whom this case has been assigned, Dean D. Pregerson, is the son of Ninth Circuit Judge Harry Pregerson, and though the elder Pregerson would undoubtedly recuse himself from any decisions involving this case, there is always the possibility that the fact that his son is implicated in the appeal might unduly influence other Ninth Circuit members—and plaintiffs' attorneys will undoubtedly be watching to see if such bias does take place.

In any case, if there is to be any response to plaintiffs' brief, it must be filed within the next 30 days, so check back with AVN for complete coverage of this important adult industry issue.

The Brief of Plaintiffs-Appellants Vivid Entertainment, LLC, et al can be found here.