9th Circuit Hears Vivid's Measure B Appeal

Mar 4, 2014 1:30 PM PST

PASADENA, Calif. — A three-judge panel yesterday heard oral arguments over Vivid Entertainment's appeal of U.S. District Judge Dean Pregerson's order denying a preliminary injunction over enforcement of Measure B.

9th Circuit Chief Judge Alex Kozinski was joined by 9th Circuit Judge Susan Graber and a visiting federal judge from Ohio, Jack Zouhary, who was designated to the case by Kozinski.

The panel has been asked to decide whether the lower court erred in declining to order an injunction over the “Safer Sex in the Adult Film Industry Act," a voter-approved measure that requires the use of condoms in the production of adult movies in Los Angeles County.

Attorney Robert Corn-Revere, who represents Vivid as well as co-plaintiffs Kayden Kross and Logan Pierce, opened up the hearing at the federal courthouse in Pasadena, Calif., by stating that the lower court in August got it partially right, but partially wrong as well.

At the lower court, Pregerson in August granted some parts and denied other parts of AIDS Healthcare Foundation's motion to dismiss and plaintiffs' motion for a preliminary injunction, as well as vacating altogether the plaintiffs' motion for judgment on the pleadings.

The AHF, the sponsor of Measure B and intervenors in the suit, has taken over defending the case as the lawsuit's official defendant, Los Angeles County, has opted to not defend it.

"This is something of an unusual appeal," Corn-Revere said in his opening address to the three judges. "The thing that makes it unusual is how many things that the court got right."

Corn-Revere went on to say that Pregerson ruled correctly that Vivid's stated claims showed that the porn studio has standing in the suit over the legality of Measure B, that stated claims showed that its 1st amendments rights were violated, that suspension  and revocation of film license permits would be deemed unconstitutional under prior restraint laws, and that claims of possible warrantless searches are unconstitutional under the 4th Amendment, among others, including that the definition of "adult films" is vague and overly broad.

"But what the court got wrong is that it incorrectly held that the plaintiffs weren't entitled to a preliminary injunction after extensively rewriting the ordinance," Corn-Revere said. "Measure B has adversely affected adult film production in Los Angeles County.

"Press reports say that film production has plummeted 95 percent through 2013," he said.

Corn-Revere told the panel that the lower court should have enjoined Measure B "in totality and not pieces of it."

"Even as rewritten it still imposed an unconstitutional prior restraint that gives authorities unbridled discretion," he told the panel. "It [also] fails under any level scrutiny because it would not advance the governments interests."

Corn-Revere said that Pregerson's order essentially rewrote Measure B, removing hundreds of words from the law — "three-fifths" of its language were blue-penciled — and that his ruling could put taxpayers on the hook for funding Measure B permitting requirements, including the cost of set inspections and subsequent hearings to determine fines, if the source of revenue  is defunded.

Pregerson's order that changed the language of Measure B, Corn-Revere noted, contradicts two other cases argued in California over judicial editing — Acosta vs. City of Costa Mesa and People vs. Nguyen.

AHF attorney Thomas Freeman, who followed Corn-Revere's arguments, was asked by Kozinski to chime in on whether "common sense" says that if Measure B were upheld, adult producers would film their movies outside the county — even Canada or Mexico.

"Going across state lines is easier but more difficult, but going over county or city lines you might say that it's so easy to circumvent," Kozinski said. "Why wouldn't you have some level of effectiveness" to a law?

"According to the plaintiffs, it is not so simple," Freeman said. "L.A. County has the infrastructure that makes doing this business so important that they are challenging this regulation because it would be allegedly highly impactful to do it somewhere else."

Freeman noted that Ventura County and other neighboring counties also could have their own regulations if they wanted.

Freeman remarked that it is ludicrous "to say L.A. County can't be the first because everyone else has to do it because there is a risk that some will move across county lines."

"And won't this be an incentive to use condoms and wouldn't that be legitimate," he said.

The 9th Circuit panel did not disclose when a decision would be made in the appeal.

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