Vivid Selects Legal Dream Team to Fight Measure B Enforcement

Jan 16, 2013 2:45 PM PST

LOS ANGELES — Vivid Entertainment has tapped some of the most experienced and ingenious attorneys to fight the enforcement of Measure B at federal court, industry officials say.

The three lawyers representing Vivid in the case — Robert Corn-Revere, Paul Cambria and H. Louis Sirkin — are seeking injunctive relief over enforcement of Los Angeles County's Safer Sex in the Adult Film Industry Act, which was approved by voters in November. Vivid and two adult performers, Kayden Kross and Logan Pierce, filed their suit Friday at U.S. District Court in Los Angeles.

For many in the biz, this Dream Team offense could make a big difference in the federal court case waged by Vivid that alleges violations of First Amendment rights and due process, among others.

After all, the trio along with another industry attorney, Allan Gelbard, were responsible for the dismissal of obscenity charges in 2010 against John Stagliano, the adult film pioneer and Evil Angel owner who had faced more than 30 years in prison and millions in fines after his indictment over the distribution of two DVDs and a trailer.

Christian Mann, Evil Angel's general manager, said that he gives these practitioners the highest honors in defending the industry.

"This is the greatest team of First Amendment litigators currently practicing," Mann told XBIZ. "All three resumes boast landmark legal victories in the free speech arena. Sirkin's defense of the Mapplethorpe exhibit, Cambria's decades-long defense of Larry Flynt and Corn-Revere's successful representation of CBS vs. FCC are just a few of the well-known cases these individuals have handled.

"Together they walked John Stagliano out of court a free man. Yes, this is the right team," said Mann, who also is a Free Speech Coalition board member.

The FSC's Diane Duke, who leads the industry trade group as CEO, echoed Mann's take and said the business, which does most of its U.S. shooting in the county particularly in the San Fernando Valley, is "very well represented by top-notch attorneys."

"Our industry is fortunate to have a number of excellent attorneys in our bullpen to defend us," Duke told XBIZ.

J.D. Obenberger, a peer and adult entertainment industry attorney, told XBIZ the three counselors are "easily on my list of the smartest 20 people I know."

"Vivid has assembled the finest team of creative and brilliant attorneys one could imagine for this cutting-edge assault on repressive and unnecessary regulation,"  said Obenberger, who noted that Vivid has "come to the plate to fight not only for the rights of all of the production houses in the valley, the freedom of directors and adult performers, but for many thousands of allied professionals and workers whose livelihoods are directly imperiled by Measure B."

 "Vivid needs a team of that stature in order to have any reasonable chance of success. They must overcome formidable hurdles."

The most obvious hurdle, Obenberger said, is a series of "absention" doctrines by which federal courts, at their discretion, usually refrain from exercising their jurisdiction to decide a case on federal statutory or constitutional grounds when a question of state law can control the outcome of the case.

One count in the seven-count case that might give victory to plaintiffs argues that the law exceeds local power over workplace health and safety regulations that the Legislature reserved to its state agencies, Obenberger said.

"The pre-emption argument may be the strongest argument in the quiver of these very smart lawyers," he said.

Obenberger noted that the Measure B ordinance has "many vulnerabilities of constitutional dimension, and the Vivid legal team is playing every register of the organ in attacking each."  

"Fourth Amendment privacy arguments against unreasonable searches and seizures of 'suspected' evidence that may 'bear' on compliance cannot possibly endure any degree of constitutional scrutiny without falling," he said. "The peremptory revocation of a health permit without prompt and effective appeal rights in fairly immediate order cannot stand."

As for First Amendment arguments, Obenberger said that Vivid attorneys argued in their complaint that the condom requirement of the Measure B law "intrudes" on the expressive element of adult films.

"The brilliant attorneys who drafted this document know that not every 'intrusion' on expression will amount to a violation of the First Amendment," he said.

Gelbard, the adult entertainment industry who worked with the three attorneys in the Stagliano case, said that the Measure B case will be heard by U.S. District Judge Dean Pregerson, and that is a big plus for Vivid.

"Judge Pregerson is incredibly smart," Gelbard told XBIZ. "And he gets it. He's going to look at the issue of compelled speech and likely find it untenable."

Gelbard also said that there is a possibility that the county could choose not defend the lawsuit, and that the AIDS Healthcare Foundation, which sponsored the measure, likely would file suit against the county, resulting in "intense fireworks."  

Obenberger noted that if Pregerson rules against enforcement of Measure B, the lawsuit would teach AHF something of value that will help them sharpen their pencils and draft laws more likely to achieve their purposes.

"In laws that may be enacted after this one falls, those deficiencies can be repaired by the regulators, and in the end, a law may stand in place after several rounds of litigation that cannot be invalidated so easily," Obenberger said.

"The ultimate issue of the validity of such workplace regulations will not go away," Obenberger said. "The sponsors of this law have every intention of spreading their regulation over the creation of adult video by consenting adults to every place where adult films are made."  

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