So...What's That Measure B Lawsuit All About?

LOS ANGELES—Earlier today, attorneys for Vivid Entertainment Group and actors Kayden Kross and Logan Pierce filed suit in United States District Court for the Central District of California against the County of Los Angeles, LA County Department of Public Health (LACDPH) Director Dr. Jonathan Fielding and LA District Attorney Jackie Lacey challenging the constitutionality and other infirmities of Measure B, the county ordinance enacted by voters in the November election.

Heading up the legal fight against the measure will be well-known adult industry attorneys Paul Cambria and H. Louis Sirkin as well as several attorneys from the Washington, D.C. firm of Davis Wright Tremaine LLP, including First Amendment advocate Robert Corn-Revere.

The lawsuit's argument is fairly simple: The U.S. Supreme Court has, for more than 30 years, recognized the right to make non-obscene sexually-explicit movies, but Measure B restricts that right in several ways. For example, it requires adult producers to pay an indeterminate fee to obtain a "health permit" from LA County, requires almost everyone connected with an adult production to complete blood-borne pathogen training, and allows the LA County Department of Public Health to revoke its permit, possibly permanently, at a moment's notice and without prior warning. And of course, it requires that all performers use condoms (and latex gloves, goggles, "dental dams" and face shields) during the performance of sex acts on camera, and may even require the production crew to wear hazmat suits while filming as well.

"There are several things that are really troublesome about this law," Cambria stated. "What happens here is, in order to create a piece of legal free expression—that is, a movie—you have to first pay for a permit from the county, and it depends upon how many people apply for permits, because they're going to divide the cost to administer the program by the number of applicants, so it could be as much as $11,000 for a permit. So you have to first pay, and secondly, you have to agree to modify your content to include condoms, and of course, that is something that now has the government participating in the creative part of the movie.

"For example, let's assume that my movie theme is, a husband and wife are trying to conceive a child, and they can't," he continued. "So the wife decides that she's going to have sex with all the members of her husband's bowling team without him knowing, and hoping that one of them will make her pregnant, and he'll think it's his and be thrilled and they'll be happy ever after. Or you're going to do a Pirates of the Caribbean type movie and all the action is set in the year 1730 and somebody whips out a latex condom. Obviously, the creative process is now interfered with by the government, and it just gets geometric if you're talking about goggles and all the rest. So that's part of it."

Yet another flaw in the law, according to the complaint, is that LACDPH is given "total discretion" to apply "draconian penalties" to producers "at its whim"—penalties that may cost production workers their jobs and/or affect their livelihoods in a variety of ways.

The complaint also makes it clear that the adult industry, for more than a decade, has taken it upon itself to require, however informally, that performers in its movies be tested for various sexually transmitted diseases including HIV, gonorrhea, syphilis and chlamydia, and those found to be positive for any of those diseases are not allowed to work until cured. The complaint notes that the industry assisted in the founding of AIM Healthcare Foundation, and more recently the Adult Production Health and Safety System (APHSS), for just that purpose.

"Compliance with this testing regime is universal," the complaint states. "Without a current, negative test, or proper identification, no individual is allowed to participate in the creation of content in a way that would potentially expose anyone else to HIV or any other sexually transmitted disease. No law-abiding adult film producer would allow a performer to appear without a current APHSS or equivalent negative-test confirmation, and no performer would agree to film without confirming his or her co-performer's negative test."

"That's one of the things that really, truly bothers me," Cambria noted, "because currently, we have a workable system, and if we were to all work toward improving that system of testing, we would be accomplishing what purportedly is the goal, which is to protect people from contracting disease. Now you're going to push them either offshore or into a different country or out to a different state where there will be little or no protections at all. That's the reality of it, and I see client after client making arrangements and actually filming outside of LA County. So it's actually happening; it's not just a threat; it's a fact."

The complaint also points out that workplace health and safety is more properly the job of the California Department of Occupational Safety & Health (CalOSHA), a body that Cambria has testified before during meetings that took place in 2011 and 2012—and in fact, Measure B itself refers specifically to the California Health Code's Title 8, Section 5193 as something producers must obey in order to keep their health permits. The complaint also challenges several claims about the link between adult performing and STDs, terming them "misleading and incorrect."

"Measure B grants the Department broad, vague, and unlimited powers of enforcement," the complaint states. "Department inspectors are granted access to 'any location suspected of conducting any activity regulated by' Measure B, without notice. Moreover, Department inspectors may take possession of 'any sample, photograph, record or other evidence, including any documents bearing on' compliance with Measure B, without any limitations or cause requirement. Thus, a Department inspector could seize personal property, private documents, and take 'samples' from any person, that they, in their sole discretion determine to have 'bearing on' Measure B compliance, without any due process protections for those that may be present at a location where the inspector 'suspects' an activity regulated by Measure B is taking place.

"The Department may, at any time and without prior notice, suspend or revoke the required permit for any violation of Measure B’s provisions, or of any other laws—which are not identified or limited—if the violation may create a risk for performers of exposure to sexually transmitted diseases, which 'risks' also are undefined," the complaint continues. "If a Measure B permit is suspended or revoked, work is not only stopped on a given production, but the producer cannot engage in any filming, thus prohibiting the creation of other works and placing the livelihoods of hundreds of individuals in limbo...Under Measure B’s lack of specific standards and provisions, the Department has the ability—based on a single technical violation—to destroy, almost overnight, the entire business of a given film producer, and to eliminate the jobs of all its employees and contractors." [Emphasis in original]

The complaint also notes that any violation of Health Department directives may result in an adult producer or performer being imprisoned, even for a first offense.

"Measure B does not differentiate between an individual who, on one occasion, failed to post the required notice with the necessary 36-point font, and an individual who has repeatedly violated the statute over an extended period of time," the complaint notes.

Another problem with the law which the complaint points out is that Measure B hardly covers, nor can it cover, all types of sexual contact in venues other than on adult movie sets—and in fact, the measure specifically ignores several other types of commercial activities that occur in LA County where blood and potentially infectious fluids may be exchanged.

"If the impetus for this is to protect people from exchanging bodily fluids and because they may be infected with disease, then do we not have to say that it's under-inclusive unless it includes ultimate fighting, where blood's clearly spilled all the time?" Cambria asked. "Should they be in some kind of latex suit? How about the general movie studios? Let's assume the second unit director, which is always the action guy, puts together a scene where they're going to fake a fight, and during the course of it, they hit one another, they bleed, they exchange fluids? Well, we've got to protect them there. So now it has to include them as well or be constitutionally under-inclusive."

The complaint is being brought under 42 United States Code Sec. 1983, which is usually reserved for government employees who exceed their authority to the detriment of ordinary citizens—and in a sense, that's exactly what Measure B does. Thus, Count I of the complaint is titled, "Section 1983 Claim For Violation Of The First Amendment By Subjecting Freedom Of Expression To A Referendum." In other words, the county, by allowing Measure B on the ballot, enlisted the entire population of the county in an attempt to stifle, unconstitutionally, the speech of adult content producers by letting them vote on what the content of that speech must include; i.e., condoms.

The complaint also charges that Measure B amounts to prior restraint on speech, which the Supreme Court has condemned many times; by charging fees that are in excess of the expenses the fees allegedly pay for; that Measure B's terms and provisions are unconstitutionally vague, and that they violate the Fourteenth Amendment's guarantees of due process of law by depriving producers and performers of their "liberty and property interests in the expressive works they create through the exercise of their First Amendment rights"; and that in any case, Measure B's requirements are already preempted by state law.

All in all, the lawsuit filed on behalf of Free Speech Coalition and the performer plaintiffs is well-argued, and the County and other defendants will be hard-pressed to provide answers to its various counts that do not violate either state or federal constitutional law.

The case has been assigned to District Court Judge Dean Pregerson, who is considered one of the more liberal justices on the Central District bench. The defendants now have the option of answering the complaint formally, or attempting to have the complaint dismissed using a variety of legal arguments. In any case, the legal wranglings over the complaint are likely to take several months before the case is brought to trial, or before a settlement is reached. Keep checking with for the latest news regarding this incredibly important legal fight.

A copy of the complaint can be found here.