Vivid Seeks Judgment on Measure B Pleadings

Jul 5, 2013 11:45 AM PST

LOS ANGELES — Vivid Entertainment today filed a reinstated motion with the federal court for judgment in the Measure B case.

Counsel for Vivid also filed another motion to toss the AIDS Healthcare Foundation as intervenors in the studio's legal fight to stay enforcement of Measure B, which requires preproduction blood pathogen training, permitting and the payment of permit fees and mandatory condom use for porn performers

Both motions were expected from Vivid counsel, which benefitted immensely last month after the U.S. Supreme Court held in Hollingsworth vs. Perry that proponents of the California anti-same-sex marriage ballot initiative had no personal stake or standing under Article III of the Constitution.

Article III allows only an individual who has suffered injury himself to bring a case or appeal in federal court. The harm must be direct and concrete; an ideological interest never has been sufficient to establish standing.

"The court plainly stated that Article III standing 'is not to be placed in the hands of concerned bystanders, who will use it simply as a ‘vehicle for the vindication of value interests,’” Vivid lawyers said.

Vivid counsel in their brief for a ruling on the pleadings echoed previous filings seeking judgment challenging Measure B’s constitutionality because among other things it imposes "an intolerable burden on the exercise of rights under the First Amendment."

"Measure B inflicts constitutional harm by forcing adult film producers to pay fees and obtain permits from the Los Angeles County Department of Public Health, before any production occurs," Vivid counsel said. "The permitting and fee regime requires all principals and management-level employees – including film directors – to complete blood borne pathogen training, and allows immediate and potentially permanent permit revocation without prior notice.

Vivid attorneys also repeated that Measure B also requires the use of condoms during the production of adult films, "even though the performers are – as are all performers in adult films – consenting adults engaged in constitutionally protected expression."

"Measure B is backed by draconian penalties that the county Department of Public Health enjoys total discretion to enforce against the adult film industry under broad, vague, and unlimited enforcement powers," Vivid counsel wrote.

The measure, Vivid lawyers say, curtails freedom of expression via a county ballot initiative, while also purporting to impose restrictions on protected speech based on “findings” that lack any legislative record.

"Measure B serves as a prior restraint by preemptively prohibiting the production of any adult film if its director (among others) has not completed blood borne pathogen training," Vivid counsel said.

Moreover, they said, Measure B is vague and subject to different interpretations where health department officials must guess at the law's meanings, creating the prospect of differential application of the law.

"The enforcement of Measure B also presents serious due process problems," Vivid attorneys said. "Its permit suspension/revocation regime operates without prior hearing and lacks procedural safeguards.

"It also allows searches of any location 'suspected' of being subject to Measure B, and seizures of all manner of personal property, including 'samples,' without any warrant or probable cause requirement. Thus, if enforced, Measure B would violate plaintiffs’ liberty and property interests in the expressive works they create through the exercise of First Amendment rights, in documents and other personal property used to create those works, and in the ongoing freedom to create such works."

Vivid counsel in one of two briefs filed today said the studio, as well as co-plaintiffs Logan Pierce and Kayden Kross, are entitled to a judgment on the pleadings that invalidates Measure B on any, some, or all of the grounds.

   

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