Federal Court Rules Measure B Constitutional

Vivid, Kayden kross and Logan Pierce lose appeal.
Heres the decision:

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIVID ENTERTAINMENT, LLC;
CALIFA PRODUCTIONS, INC.;
KAYDEN KROSS; and LOGAN PIERCE,
Plaintiffs-Appellants,
v.
JONATHAN FIELDING, Director of
Los Angeles County Department of
Public Health; JACKIE LACEY, Los
Angeles County District Attorney;
and COUNTY OF LOS ANGELES,
Defendants-Appellees,
and
MICHAEL WEINSTEIN; ARLETTE DE
LA CRUZ; WHITNEY ENGERAN;
MARK MCGRATH; MARIJANE
JACKSON; and THE CAMPAIGN
COMMITTEE YES ON MEASURE B,
Intervenors/Defendants-Appellees.
No. 13-56445
D.C. No.
2:13-cv-00190-
DDP-AGR
OPINION
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
March 3, 2014—Pasadena, California
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VIVID ENTERTAINMENT 2 V. FIELDING
Filed December 15, 2014
Before: Alex Kozinski and Susan P. Graber, Circuit
Judges, and Jack Zouhary,* District Judge.
Opinion by Judge Graber
SUMMARY**
Civil Rights
The panel affirmed the district court’s order denying, in part, plaintiffs’ motion to enjoin the voter-initiated County of Los Angeles Safer Sex in the Adult Film Industry Act
(commonly known as Measure B), which imposes a permitting system and additional production obligations on the makers of adult films, including a requirement that performers wear condoms in certain contexts.
Plaintiffs alleged that Measure B’s permitting scheme and its condom requirement operate as prior restraints on plaintiffs’ ability to create expression, in the form of adult films, which is protected by the First Amendment. In granting partial preliminary injunctive relief, the district court severed one chapter of Measure B in its entirety and severed
* The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
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VIVID ENTERTAINMENT V. FIELDING 3
portions of three other chapters. Plaintiffs appealed thedistrict court’s decision not to enjoin Measure B in full. The panel held that it had jurisdiction over the appeal whether or not the intervenors-defendants demonstrated Article III standing because plaintiffs had standing, and they alone invoked the federal court’s jurisdiction.
The panel held that the district court did not abuse its discretion in holding that the invalid portions of Measure B (allowing for modification, suspension, and revocation of permits; authorizing administrative searches; and allowing discretion in setting fees) were severable.
The panel held that the district court did not abuse its discretion in declining to enjoin the enforcement of Measure B’s condom mandate. The panel concluded that the condom mandate survived intermediate scrutiny because it was only a de minimis effect on expression, was narrowly tailored to achieve the substantial governmental interest of reducing the rate of sexually transmitted infections, and left open adequate alternative means of expression.
The panel further held that Measure B’s requirements that adult film producers complete training about blood-borne pathogens and post a permit during shooting served the County’s interest in preventing sexually transmitted infections.
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VIVID ENTERTAINMENT 4 V. FIELDING
COUNSEL
Robert Corn-Revere (argued) and Ronald G. London, Davis
Wright Tremaine, LLP, Washington, D.C.; Janet L. Grumer
and Matthew D. Peterson, Davis Wright Tremaine LLP, Los
Angeles, California; Paul J. Cambria, Lipsitz Green Scime
Cambria LLP, Buffalo, New York; and H. Louis Sirkin,
Santen & Hughes LPA, Cincinnati, Ohio, for Plaintiffs-
Appellants.
Thomas R. Freeman (argued) and Mitchell A. Kamin,
Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Licenberg,
P.C., Los Angeles, California; and Tom Myers, Laura
Boudreau, Samantha R. Azulay, and Christina Yang, AIDS
Healthcare Foundation, Los Angeles, California, for
Intervenors/Defendants-Appellees.
No appearance for Defendants-Appellees.
OPINION
GRABER, Circuit Judge:
Plaintiffs Vivid Entertainment, LLC; Califa Productions,
Inc.; Kayden Kross; and Logan Pierce are organizations and
individuals who make adult films in Los Angeles County.
The Los Angeles County Department of Public Health, whose
director is a defendant here, sent Plaintiffs a letter stating its
intention to enforce the voter-initiated County of Los Angeles
Safer Sex in the Adult Film Industry Act (2012) (commonly
known as Measure B) (codified at Los Angeles County, Cal.,
Code tit. 11, div. 1, ch. 11.39, and amending tit. 22, div. 1, ch.
22.56.1925). Measure B imposes a permitting system and
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VIVID ENTERTAINMENT V. FIELDING 5
additional production obligations on the makers of adult films, including a requirement that performers wear condoms in certain contexts. Plaintiffs sued for declaratory and injunctive relief, arguing that Measure B burdens their freedom of expression in violation of the First Amendment. Defendant Los Angeles County answered that, although it would enforce the ordinance unless ordered by a court not to, it did not intend to defend Measure B because it took a “position of neutrality” with respect to the ordinance’s constitutionality. The official proponents of Measure B intervened to defend it.
The district court issued a preliminary injunction forbidding Defendants from enforcing Measure B’s feesetting provision, which gave Defendants discretion to set fees for permits; a provision that allowed warrantless searches by county health officers of any location suspected of producing adult films; and the broad permit modification, suspension, and revocation process. The court denied preliminary injunctive relief, though, for much of the ordinance, including its condom and permitting requirements. Plaintiffs appeal the district court’s decision not to enjoin Measure B in full.1 We affirm.
FACTUAL AND PROCEDURAL HISTORY
The citizens of Los Angeles County enacted Measure B in November 2012 by means of the initiative process; it became law on December 14, 2012. The text of the ordinance declared that it was passed in response to documentation by the Los Angeles County Department of Public Health of the widespread transmission of sexually 1 No one challenges the partial grant of preliminary injunctive relief.
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VIVID ENTERTAINMENT 6 V. FIELDING
transmitted infections among workers in the adult film industry. Under Measure B, producers of adult films2 must obtain a newly designated “public health permit” before shooting an adult film in Los Angeles County. Under Measure B as enacted, to obtain such a permit, producers of adult films must pay a fee, provide the Department with proof that certain employees have completed a county-approved training program concerning blood-borne pathogens, display the permit while filming, post a notice at the film site that the use of condoms is required, report to the Department any changes in the permitted business, and comply with all applicable laws, including title 8, section 5193 of the California Code of Regulations. Measure B 11.39.080, .090, .100, .110. Section 5193 mandates barrier protection for all employees who are exposed to blood-borne pathogens, which Measure B interprets to require condoms for performers who engage in vaginal or anal intercourse. Id. 11.39.090. Measure B also provides that a public health permit may be suspended or revoked, and fines or criminal penalties imposed, for failure to comply with all permitting requirements. Id. 11.39.110. A producer who faces modification, suspension, or revocation of a permit may apply for an undefined form of “administrative review.” Id. 11.39.110(C).
In addition to providing for monetary and criminal penalties, Measure B allows enforcement of the permitting requirements through a surprise inspection by a Los Angeles 2 Measure B defines “producer of adult film” as “any person or entity that produces, finances, or directs, adult films for commercial purposes.” Measure B, § 4, pt. 11.39.075 (all citations herein are to parts of section 4 unless otherwise noted).
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VIVID ENTERTAINMENT V. FIELDING 7
County health officer at “any location suspected of conducting any activity regulated by this chapter.” Id. 11.39.130. “[F]or purposes of enforcing this chapter,” the health officer “may issue notices and impose fines therein and take possession of any sample, photograph, record or other evidence, including any documents bearing upon adult film producer’s compliance with the provision of the chapter.” Id. Measure B authorizes the district attorney to bring a civil enforcement action for injunctive relief against any producer who fails to cooperate with the health officer. Id. 11.39.140. On the day that Measure B took effect, Defendant Department of Public Health mailed Plaintiffs a letter notifying them of the new ordinance and stating that it had established provisional permitting fees of $2,000 to $2,500 per year. Plaintiffs then filed this action challenging Measure B as facially unconstitutional under the First Amendment.3 Plaintiffs allege that Measure B’s permitting scheme and its condom requirement operate as prior restraints on Plaintiffs’ ability to create expression, in the form of adult films, which is protected by the First Amendment.
Over Plaintiffs’ objection, the district court allowed supporters of Measure B to intervene. Following the Supreme Court’s decision in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), Plaintiffs asked the court to reconsider because, they argued, Intervenors lacked Article III standing. The district court denied the motion to reconsider. The district court granted in part and denied in part Intervenors’ motion to dismiss, and granted in part and denied 3 Plaintiffs raised other theories as well, but they are not at issue in this appeal.
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VIVID ENTERTAINMENT 8 V. FIELDING
in part Plaintiffs’ request for a preliminary injunction. In
granting preliminary injunctive relief, the district court
severed one chapter of Measure B in its entirety and severed
portions of three other chapters. Appendix A contains
Measure B and shows the parts that the district court enjoined
and severed.
Plaintiffs timely appeal the denial of complete
preliminary injunctive relief.4 They argue that the enjoined
provisions are not properly severable, so the likely invalidity
of some parts of the ordinance requires enjoining the entire
ordinance. In the alternative, Plaintiffs argue that the district
court erred in denying preliminary injunctive relief with
respect to Measure B’s requirements that producers:
(1) acquire a permit before beginning production on an adult
film; (2) demonstrate that employees have completed a
county-approved training program concerning blood-borne
pathogens as a condition precedent to issuance of the permit;
and (3) require performers to use condoms “during any acts
of vaginal or anal sexual intercourse.”
STANDARD OF REVIEW
We review for abuse of discretion denial of a preliminary
injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011). “As long as the district court got
the law right, it will not be reversed simply because we would
have arrived at a different result if we had applied the law to
the facts of the case.” A&M Records, Inc. v. Napster, Inc.,
284 F.3d 1091, 1096 (9th Cir. 2002) (internal quotation marks
and brackets omitted). A district court abuses its discretion,
however, if it applies an incorrect legal standard. Does 1–5
4 We have jurisdiction under 28 U.S.C. § 1292(a)(1).
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VIVID ENTERTAINMENT V. FIELDING 9
v. Chandler, 83 F.3d 1150, 1152 (9th Cir. 1996).
Accordingly, we review de novo the “legal premises
underlying a preliminary injunction.” A&M Records,
284 F.3d at 1096.
DISCUSSION
A. Jurisdiction
Citing Perry, Plaintiffs argue that we lack jurisdiction
over this appeal, because Intervenors lack Article III standing.
We disagree with their reading of Perry and with their
contention that Intervenors must have standing for this appeal
to proceed.
The Supreme Court has held that a party must have
Article III standing both to initiate an action and to seek
review on appeal. Arizonans for Official English v. Arizona,
520 U.S. 43, 64 (1997). But an intervenor who performs
neither of those functions and no other function that invokes
the power of the federal courts need not meet Article III
standing requirements. Yniguez v. Arizona, 939 F.2d 727,
731 (9th Cir. 1991), vacated by Arizonans for Official
English, 520 U.S. at 80, as recognized in League of United
Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1305 n.5 (9th
Cir. 1997); see also Perry, 133 S. Ct. at 2661 (citing Art. III,
§ 2) (holding that “any person invoking the power of a federal
court must demonstrate standing to do so” (emphasis added)).
Nothing in Perry, which concerned the question whether an
intervenor who sought to appeal had Article III standing,
affects that conclusion. Plaintiffs have standing, and it is they
alone who have invoked the federal courts’ jurisdiction. For
that reason, we need not and do not decide whether
Intervenors satisfy the requirements of Article III standing.
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VIVID ENTERTAINMENT 10 V. FIELDING
To the extent that Plaintiffs contend that the district court
erred in granting intervention, we cannot consider their
challenge. An order allowing intervention under Federal
Rule of Civil Procedure 24(a) is not a final order and is not an
interlocutory order appealable by statute, so an appeal on that
issue is premature until entry of final judgment. Alsea Valley
Alliance v. Dep’t of Commerce, 358 F.3d 1181, 1187 (9th Cir.
2004).
B. Severability
Plaintiffs next urge that, having held that they are likely
to succeed on the merits with respect to some provisions of
Measure B, the district court had to enjoin operation of the
entire ordinance whether or not the remainder independently
satisfies the standards for injunctive relief. For the reasons
that follow, we disagree.
Federal courts should avoid “judicial legislation”—that is,
amending, rather than construing, statutory text—out of
respect for the separation-of-powers principle that only
legislatures ought to make positive law. United States v.
Nat’l Treasury Emps. Union, 513 U.S. 454, 479 (1995). But,
because of countervailing separation-of-powers principles,
courts must respect the laws made by legislatures and,
therefore, should avoid nullifying an entire statute when only
a portion is invalid. Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 502 (1985). These concerns have led to the
judicial doctrine of severability, that is, the “elementary
principle that the same statute may be in part constitutional
and in part unconstitutional, and that if the parts are wholly
independent of each other, that which is constitutional may
stand while that which is unconstitutional will be rejected.”
Id. (internal quotation marks omitted). The need for
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deference and restraint in severing a state or local enactment
is all the more acute because of our respect for federalism and
local control. See City of Lakewood v. Plain Dealer Publ’g
Co., 486 U.S. 750, 772 (1988).
Because a court may not use severability as a fig leaf for
judicial legislation, courts have fashioned limits on when a
statute may be severed. See Yu Cong Eng v. Trinidad,
271 U.S. 500, 518 (1926) (“[I]t is very clear that amendment
may not be substituted for construction, and that a court may
not exercise legislative functions to save the law from conflict
with constitutional limitation.”). In keeping with federalism
principles, the “[s]everability of a local ordinance is a
question of state law.” City of Lakewood, 486 U.S. at 772.
California law directs courts to consider first the inclusion
of a severability clause in the legislation. Cal. Redev. Ass’n
v. Matosantos, 267 P.3d 580, 607 (Cal. 2011). “The presence
of such a clause establishes a presumption in favor of
severance.” Id. “Although not conclusive, a severability
clause normally calls for sustaining the valid part of the
enactment . . . .” Santa Barbara Sch. Dist. v. Superior Court,
530 P.2d 605, 618 (Cal. 1975) (internal quotation marks
omitted).
Measure B contains this severability clause:
If any provision of this Act, or part
thereof, is for any reason held to be invalid or
unconstitutional, the remaining provisions
shall not be affected, but shall remain in full
force and effect, and to this end the provisions
of the Act are severable.
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Measure B § 8. Section 8 states clearly that the people, acting
in their legislative capacity, intended any provision and any
part of a provision, if invalid or unconstitutional, to be
severed from the ordinance. The district court thus properly
held that Measure B’s severability clause establishes a
presumption of severability.
Next, California law directs courts to “consider three
additional criteria: The invalid provision must be
grammatically, functionally, and volitionally separable.” Cal.
Redev. Ass’n, 267 P.3d at 607 (internal quotation marks and
brackets omitted). We will consider each criterion in turn.
“Grammatical separability, also known as mechanical
separability, depends on whether the invalid parts can be
removed as a whole without affecting the wording or
coherence of what remains.” Id. (internal quotation marks
omitted). “[T]he ‘grammatical’ component of the test for
severance is met by the severability clause considered in
conjunction with the separate and discrete provisions of [the
statute].” Barlow v. Davis, 85 Cal. Rptr. 2d 752, 757 (Ct.
App. 1999). “To be grammatically separable, the valid and
invalid parts of the statute can be separated by paragraph,
sentence, clause, phrase, or even single words.” People v.
Nguyen, 166 Cal. Rptr. 3d 590, 609 (Ct. App. 2014) (internal
quotation marks omitted). “[Where] the defect cannot be
cured by excising any word or group of words, the problem
is quite different and more difficult of solution.” Ex parte
Blaney, 184 P.2d 892, 900 (Cal. 1947); Santa Barbara Sch.
Dist., 530 P.2d at 617.
Here, Plaintiffs contend that the district court abused its
discretion by striking individual words and groups of words
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VIVID ENTERTAINMENT V. FIELDING 13
from the definition of an adult film. Specifically, the district
court struck part of 11.39.010 of Measure B as follows:
An “adult film” is defined as any film,
video, multimedia or other representation of
sexual intercourse 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 performer; and/or any other sexual
activity that may result in the transmission of
blood and/or any other potentially infectious
materials.
In large part, as can be seen, the district court severed
distinct clauses. The district court also severed some
individual words but, grammatically, they are understood by
the reader to include complete clauses. For example, the
compound clause “engage in oral, vaginal, or anal
penetration” means—and easily could have been drafted to
say—“engage in oral penetration, engage in vaginal
penetration, or engage in anal penetration.” For that reason,
the district court did, in fact, sever only distinct provisions
from Measure B, and that severance did not alter the meaning
of the remaining text in any way. California courts have long
held that parts of a compound clause are grammatically
severable from a statute if their omission would not affect the
meaning of the remaining text. Ex parte Blaney, 184 P.2d at
900; Santa Barbara Sch. Dist., 530 P.2d at 617; see also
Legislature v. Eu, 816 P.2d 1309, 1335–36 (Cal. 1991)
(holding as grammatically severable “or serving in” from
“elected to or serving in the Legislature on or after November
1, 1990”); Borikas v. Alameda Unified Sch. Dist., 154 Cal.
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Rptr. 3d 186, 212 (Ct. App. 2013) (holding as grammatically
severable “residential” from “[o]n each taxable, residential
parcel at the rate of $120 per year”); City of Dublin v. County
of Alameda, 17 Cal. Rptr. 2d 845, 850–51 (Ct. App. 1993)
(holding as grammatically severable “incorporated and” from
“the geographic entity, including both the incorporated and
unincorporated areas”). In short, the district court
permissibly held that the disputed portions of Measure B are
grammatically severable.5
Our next consideration, functional severability, “depends
on whether the remainder [of the statute] is complete in
5 Plaintiffs rely on Acosta v. City of Costa Mesa, 718 F.3d 800, 820–21
(9th Cir. 2013) (per curiam), for the broad principle that a court
necessarily abuses its discretion if it holds that a single word or group of
words is grammatically severable under California law. Acosta is
distinguishable, and we decline to extend it in a way that would contradict
governing California law.
In Acosta, the severability clause itself was narrow, providing that
only “sections, paragraphs, clauses and phrases” were severable from the
ordinance in question. Id. at 820. We interpreted that particularized list
to prohibit, by inference, the severance of “individual words.” Id. As
directed by California law, we read that narrow severability clause “‘in
conjunction with the separate and discrete provisions of’ the text to
determine whether the ‘grammatical component of the test for severance
is met.’” Id. (quoting Barlow, 85 Cal. Rptr. 2d at 757). Reading the text
and severance clause together, we held that the single adjective “insolent”
and the list of adjectives “personal, impertinent, profane, insolent” were
not grammatically severable from the ordinance because, in context, the
words did not express a single “legislative thought.” Id. at 820–21.
Here, by contrast, Measure B contains a broad severability clause that
does not prohibit the severance of individual words. Under Measure B,
any provision or part of any provision shall be severed. Moreover, as
noted, the challenged severance in this case involves discrete legislative
thoughts.
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itself.” Santa Barbara Sch. Dist., 530 P.2d at 618 (internal
quotation marks omitted). To be functionally severable,
“[t]he remaining provisions must stand on their own, unaided
by the invalid provisions nor rendered vague by their absence
nor inextricably connected to them by policy considerations.
They must be capable of separate enforcement.” People’s
Advocate, Inc. v. Superior Court, 226 Cal. Rptr. 640, 649 (Ct.
App. 1986). Here, the district court enjoined the provisions
of Measure B that allowed for modification, suspension, and
revocation of permits; that authorized administrative
searches; and that allowed discretion in setting fees. The rest
of the ordinance remains intact: the permitting scheme, with
its condom and educational requirements; and enforcement
through fines and criminal charges. In addition, as the district
court noted, even in the absence of the administrative search
provision, Defendants can obtain a warrant to enforce
Measure B. Because the remaining parts of Measure B
operate independently, are not rendered vague in the absence
of the invalid provisions, and are capable of separate
enforcement, the district court permissibly ruled that the
provisions are functionally severable.
Our final consideration, volitional severability, “depends
on whether the remainder [of the statute] is complete in itself
and would have been adopted by the legislative body had [it]
foreseen the partial invalidation of the statute.” Santa
Barbara Sch. Dist., 530 P.2d at 618 (internal quotation marks
omitted). With respect to ballot initiatives, the test for
volitional severability “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.” Gerken v. Fair Political Practices
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Comm’n, 863 P.2d 694, 699 (Cal. 1993) (internal quotation
marks and emphasis omitted).
The district court preserved the requirements that
producers of adult films in Los Angeles County obtain
permits, train employees about the sexual transmission of
disease, and require performers to wear condoms when
engaged in vaginal or anal intercourse. The district court also
preserved the enforcement mechanisms of fines and criminal
penalties. As the court correctly noted, the “Findings and
Declaration” section of the initiative emphasizes (1) a
growing public concern over the spread of HIV/AIDS and
other sexually transmitted infections in the adult film
industry; (2) the importance of safe sex practices, and the use
of condoms in particular, in limiting the spread of HIV/AIDS
and other sexually transmitted infections; and (3) a failure to
enforce current state laws mandating the use of condoms by
performers in adult films. Measure B § 2. Thus, the
Declaration demonstrates that the public’s attention was
focused primarily on heightening enforcement of the condom
requirement. That is, even in the absence of the severed
segments, the remaining provisions centrally address the
voters’ stated concerns. The district court permissibly
concluded that the condom and permitting requirements are
volitionally severable from the fee-setting, inspections, and
administrative procedures.
Plaintiffs counter that the fee provisions are not
volitionally severable, because the voters would not have
passed Measure B as an “unfunded mandate.” But the
Declaration contained in Measure B says nothing about
money or revenue neutrality. Rather, the text demonstrates
that the core purpose of the initiative “was presented to the
electorate as a distinct aim, separate and apart from the
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VIVID ENTERTAINMENT V. FIELDING 17
measure’s funding mandate.” McMahan v. City of San
Francisco, 26 Cal. Rptr. 3d 509, 513 (Ct. App. 2005)
(holding that a funding provision was volitionally severable
from the primary regulatory scheme).
In sum, the district court did not abuse its discretion in
granting preliminary injunctive relief with respect to only
certain parts of Measure B, while allowing enforcement of
other provisions as severable. We now turn to Plaintiffs’
assertion that, even if severance is permissible, the district
court erred in denying preliminary injunctive relief with
respect to additional parts of the ordinance: the condom
mandate and the permitting requirement.
C. Denial of Preliminary Injunctive Relief
In deciding whether a preliminary injunction should issue,
a district court must consider four factors: (1) whether the
plaintiff has shown a likelihood of success on the merits; (2)
whether the plaintiff has shown a likelihood of irreparable
harm in the absence of preliminary relief; (3) whether the
balance of equities tips in the plaintiff’s favor; and
(4) whether preliminary relief is in the public interest. Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Courts asked to issue preliminary
injunctions based on First Amendment
grounds face an inherent tension: the moving
party bears the burden of showing likely
success on the merits . . . and yet within that
merits determination the government bears the
burden of justifying its speech-restrictive
law. . . .
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. . . .
Therefore, in the First Amendment
context, the moving party bears the initial
burden of making a colorable claim that its
First Amendment rights have been infringed,
. . . at which point the burden shifts to the
government to justify the restriction.
Thalheimer v. City of San Diego, 645 F.3d 1109, 1115–16
(9th Cir. 2011). But even if the plaintiff demonstrates likely success on the merits, the plaintiff still must demonstrate irreparable injury, a favorable balance of equities, and the tipping of the public interest in favor of an injunction. Id. at 1128. That is, although a First Amendment claim “certainly raises the specter” of irreparable harm and public interest considerations, proving the likelihood of such a claim is not enough to satisfy Winter. Stormans, [Inc. v. Selecky, 586 F.3d 1109,] 1138 [(9th Cir. 2009)]; see also Klein v. City of San Clemente, 584 F.3d 1196, 1207 (9th Cir. 2009) (even where the plaintiff was likely to succeed on the merits of his First Amendment claim, he “must also demonstrate that he is likely to suffer irreparable injury in the absence of a preliminary injunction, and that the balance of equities and the public interest tip in his favor”) (citing Winter, 555 U.S. at 20).
DISH Network Corp. v. FCC, 653 F.3d 771, 776 (9th Cir.
2011).
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1. Condom Mandate
The district court held that Plaintiffs are unlikely to succeed on the merits of their First Amendment challenge to the condom requirement. The court did not abuse its discretion in declining to enjoin the enforcement of the condom mandate. The condom mandate survives intermediate scrutiny because it has only a de minimis effect on expression, is narrowly tailored to achieve the substantial governmental interest of reducing the rate of sexually transmitted infections, and leaves open adequate alternative means of expression.
As a threshold matter, Plaintiffs argue that the district court applied the wrong standard—intermediate scrutiny— and that the condom mandate should be subject to strict scrutiny. We disagree.
The Supreme Court has recognized that nearly all regulation of the adult entertainment industry is content based. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448 (2002) (Kennedy, J., concurring in the judgment). Content-based regulation of speech generally receives strict scrutiny, but we have fashioned an exception, grounded in Alameda Books, that applies intermediate scrutiny if two conditions are met. Ctr. for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1161, 1164–65 (9th Cir. 2003) (citing Alameda Books, 535 U.S. at 434) (recognizing Justice Kennedy’s concurrence as controlling). First, the ordinance must regulate “speech that is sexual or pornographic in nature.” Gammoh v. City of La Habra, 395 F.3d 1114, 1123, amended on denial of reh’g, 402 F.3d 875 (9th Cir. 2005). Second, “the primary motivation behind the regulation [must be] to prevent secondary effects.” Id.
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But even if those two conditions are met, strict scrutiny may still apply if the regulation amounts to a complete ban on expression. Dream Palace v. County of Maricopa, 384 F.3d 990, 1021 (9th Cir. 2004).
We assume, but need not and do not decide, that Measure B’s condom mandate is a content-based regulation of speech. Nonetheless, Measure B regulates sexual speech in order to prevent the secondary effects of sexually transmitted infections, thus falling within the Alameda Books exception. Plaintiffs argue that, despite that exception, the district court should have applied strict scrutiny because the condom mandate amounts to a complete ban on their protected expression.
As an initial matter, Plaintiffs’ argument presupposes that their relevant expression for First Amendment purposes is the depiction of condomless sex. But “simply to define what is being banned as the ‘message’ is to assume the conclusion.” City of Erie v. Pap’s A.M., 529 U.S. 277, 293 (2000). In Pap’s A.M., a plurality of the Supreme Court concluded that a general ban on public nudity, which required erotic dancers to wear at least pasties and a G-string while dancing, did not violate the First Amendment. Id. at 302. In reaching that conclusion, the opinion rejected the argument that the pastiesand- G-string requirement functioned as a complete ban on the dancers’ expression of “nude dancing.” Id. at 292–93. Instead, the opinion defined the relevant expression more broadly as “the dancer’s erotic message.” Id. at 301. We undertook a similar analysis, albeit without reference to Pap’s A.M., in Gammoh, in which we upheld an ordinance that required dancers to stay at least two feet away from patrons during their performances. 395 F.3d at 1123. The plaintiffs there argued that the ordinance completely banned their Case: 13-56445, 12/15/2014, ID: 9348589, DktEntry: 57-1, Page 20 of 40
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expression, which they defined as “proximate dancing.” Id. In response, we stressed that “the ‘expression’ at issue could always be defined to include the contested restriction,” but “virtually no ordinance would survive this analysis.” Id. We instead defined the relevant expression as “the dancer’s erotic message” and upheld the ordinance. Id. at 1128.
In light of those cases, we must examine more carefully whether Plaintiffs’ relevant expression is the depiction of condomless sex. Plaintiffs submitted declarations stating that condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease. Under this view, films depicting condomless sex convey a particular message about sex in a world without those risks. The Supreme Court has cautioned, however, that “‘[i]t is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.’” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 570 (1991) (quoting City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989)). To determine whether conduct is protected by the First Amendment, we ask not only whether someone intended to convey a particular message through that conduct, but also whether there is a “great” likelihood “that the message would be understood by those who viewed it.” Spence v. Washington, 418 U.S. 405, 410–11 (1974) (per curiam). Here, we agree with the district court that, whatever unique message Plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message. So condomless sex is not the Case: 13-56445, 12/15/2014, ID: 9348589, DktEntry: 57-1, Page 21 of 40
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relevant expression for First Amendment purposes;6 instead, the relevant expression is more generally the adult films’ erotic message. See Pap’s A.M., 529 U.S. at 293; Gammoh,
395 F.3d at 1123.
With Plaintiffs’ expression so defined, we conclude that strict scrutiny is inappropriate because the condom mandate does not ban the relevant expression completely. Rather, it imposes a de minimis restriction. In Pap’s A.M., the Supreme Court held that the pasties-and-G-string requirement did not violate the First Amendment because, even if the ban “has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped,” that effect was de minimis. 529 U.S. at 294 (emphasis added). That was so even though the ban “certainly ha[d] the effect of limiting one particular means of expressing the kind of erotic message being disseminated.” Id. at 292–93; see also Barnes, 501 U.S. at 571 (noting that a requirement that erotic dancers wear pasties and G-strings “does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic”). 6 We also note that even if the relevant expression were the depiction of condomless sex, Measure B still might warrant intermediate scrutiny. On its face, Measure B does not ban expression; it does not prohibit the depiction of condomless sex, but rather limits only the way the film is produced. In that way, Measure B’s condom mandate is akin to the twofoot required distance between exotic dancers and patrons that we upheld in Gammoh, which did not “ban any form of dance” or address the content of the dance. 395 F.3d at 1123. When the district court adjudicates the First Amendment claim on the merits, if the court were to find that special effects could be used to edit condoms out of adult films, that would provide yet another reason to apply intermediate scrutiny.
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Many of our sister circuits have relied on Pap’s A.M. in upholding de minimis restrictions on speech using intermediate scrutiny. See, e.g., Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 299 (6th Cir. 2008) (upholding a nudity ban under intermediate scrutiny because Pap’s A.M. and Barnes had characterized a similar regulation as de minimis); Fantasy Ranch Inc. v. City of Arlington, 459 F.3d 546, 562 (5th Cir. 2006) (rejecting an argument that an ordinance requiring a certain distance between dancers and the audience enacted a “complete ban on proximate nude dancing”); Heideman v. S. Salt Lake City, 348 F.3d 1182, 1195–96 (10th Cir. 2003) (applying Pap’s A.M. to conclude that a ban on nude erotic dancing was not a “total ban” on speech). And, as noted, we followed this same analytical approach in Gammoh, 395 F.3d at 1122–23.
A similar analysis applies to the condom mandate. The requirement that actors in adult films wear condoms while engaging in sexual intercourse might have “some minimal effect” on a film’s erotic message, but that effect is certainly no greater than the effect of pasties and G-strings on the erotic message of nude dancing. In light of Pap’s A.M. and the other precedent cited above, we conclude that the restriction on expression in this case is de minimis. And a de minimis restriction on expression is, by definition, not a complete ban on expression, and so does not trigger strict scrutiny. Accordingly, the mandate is subject to intermediate scrutiny.
The district court properly exercised its discretion in concluding that the condom requirement likely would survive intermediate scrutiny. “A statute will survive intermediate scrutiny if it: (1) is designed to serve a substantial government interest; (2) is narrowly tailored to serve that
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interest; and (3) does not unreasonably limit alternative avenues of communication.” Gammoh, 395 F.3d at 1125–26, as amended on denial of reh’g, 402 F.3d at 876.
The purpose of Measure B is twofold: (1) to decrease the spread of sexually transmitted infections among performers within the adult film industry, (2) thereby stemming the transmission of sexually transmitted infections to the general population among whom the performers dwell. Plaintiffs do not contest that the government has a substantial interest in preventing certain secondary effects of the adult film industry, including the spread of sexually transmitted infections. See Rubin v. Coors Brewing Co., 514 U.S. 476, 485 (1995) (stating that “the Government . . . has a significant interest in protecting the health, safety, and welfare of its citizens”); Ctr. for Fair Pub. Policy, 336 F.3d at 1166 (“It is beyond peradventure at this point in the development of the doctrine that a state’s interest in curbing the secondary effects associated with adult entertainment establishments is substantial.”). Rather, Plaintiffs contend that Measure B’s condom mandate is not narrowly tailored to serve the government’s interest.
In order to be narrowly tailored for purposes of intermediate scrutiny, the regulation “‘need not be the least restrictive or the least intrusive means’ available to achieve the government’s legitimate interests.” Berger v. City of Seattle, 569 F.3d 1029, 1041 (9th Cir. 2009) (en banc) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989)). “Rather, the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th Cir. 1998) (internal quotation marks and ellipsis
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omitted). This is not to say that narrow tailoring allows a regulation to burden more speech than is necessary to satisfy the interest, but we may not invalidate such a regulation “simply because there is some imaginable alternative that might be less burdensome on speech.” United States v.
Albertini, 472 U.S. 675, 689 (1985).
Plaintiffs’ narrow-tailoring argument rests largely on the proposition that Measure B duplicates a voluntary testing and monitoring scheme that already is in place in the industry. The adult film industry and its trade associations have established the Adult Protection Health & Safety Service, which has implemented a program whereby performers are tested, either monthly or more frequently, and the test results are made available in a database. In addition, if the Safety Service receives notification of a positive test result, it must inform the Department of Public Health. Adult film producers and performers have access to the database in order to verify that performers have been tested and that those tests have been negative. Certain employers require their performers, by contract, to submit to testing at various intervals. For example, Plaintiff Kross’ contract requires testing every 15 days, Plaintiff Pierce is tested every 14 days, and all of Plaintiff Vivid Entertainment’s performers are tested at least once every 28 days.
On the day of production, Plaintiff Vivid Entertainment requires each performer to provide identification, and each performer’s test history is drawn from the Safety Service database. Plaintiff Vivid Entertainment allows participation in the production only by performers with a current test status and a negative result. Plaintiffs Kross and Pierce declare that they undertake this screening process before every explicit scene in which they perform, and both Plaintiffs Kross and Case: 13-56445, 12/15/2014, ID: 9348589, DktEntry: 57-1, Page 25 of 40
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Pierce declare that they would not take part in an explicit scene if the screening measures were not in place. Plaintiffs also provided testimony from industry officials that this testing system is effective.
The district court considered Plaintiffs’ evidence and weighed it against contradictory evidence that the industry’s testing scheme is ineffective. In particular, the district court considered a 2009 letter from the County of Los Angeles Department of Public Health to support the conclusion that Measure B, passed in 2012, was designed to address the spread of disease and is narrowly tailored to that end.7 The Findings and Declaration section of Measure B refers specifically to documentation by the Los Angeles County Department of Public Health of the spread of HIV/AIDS and other sexually transmitted infections in the adult film industry. Measure B § 2.
In the 2009 letter, the Department of Public Health reported that its analysis of 2008 data showed a markedly higher rate of sexually transmitted infections for performers within the adult film industry, 20%, than for the general public, 2.4%, and even for the county area with the highest rate of infection, 4.5%. The Department of Public Health 7 The district court properly relied on the letter because it is referred to in Measure B itself. Moreover, the letter is “not subject to reasonable dispute” because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b); see Sachs v. Republic of Austria, 737 F.3d 584, 596 n.10 (9th Cir. 2013) (en banc) (taking notice of legislative facts necessary to discern legislative intent as directed by Rule 201(a), advisory note to 1972 amendments, but noting also that the court could properly notice such facts as adjudicative facts under Rule 201(b)), petition for cert. filed, 82 U.S.L.W. 3573 (U.S. Mar. 5, 2014) (No. 13-1067).
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also found that 20.2% of performers in adult films diagnosed with an infection were reinfected within one year. Further, the Department of Public Health opined that the data with respect to infection rates were likely underestimated, because rectal and oral screenings were not completed with regularity
among workers in the industry.
The district court weighed all the evidence before it and, finding the 2009 letter especially compelling, held that Plaintiffs were unlikely to succeed on the merits in their First Amendment challenge to the condom mandate. In so doing, the district court did not abuse its discretion.8
On appeal, Plaintiffs also argue that Measure B’s condommandate is not narrowly tailored, and is largely ineffective, because makers of adult films can produce films across county lines without having performers wear condoms. As an initial matter, it bears noting that Plaintiffs offered evidence before the district court that Measure B has drastically reduced the number of adult films produced by the industry because the productions, which depend heavily on the “regular” film industry’s infrastructure in Los Angeles County, cannot be moved elsewhere. That evidence undermines Plaintiffs’ new contention that Measure B is ineffective because of the adult film industry’s ready mobility.
8 That the condom mandate has a de minimis effect on expression also supports the conclusion that the ordinance is narrowly tailored. Cf. Sensations, Inc., 526 F.3d at 299 (citing Pap’s A.M. and Barnes in holding that a ban on public nudity was narrowly tailored to suppress negative secondary effects).
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But, more importantly, Plaintiffs’ argument overstates the standard for narrow tailoring, which simply requires that the regulation “promote[] a substantial government interest that would be achieved less effectively absent the regulation.” Colacurcio, 163 F.3d at 553. The regulation need not be the most effective way to achieve the government’s substantial interest, nor must it be shown that the regulation cannot be circumvented. Rather, it suffices if the regulation helps to achieve the substantial government interest effectively. Id. Finally, Plaintiffs contend that Measure B’s condom mandate unconstitutionally forecloses alternative channels of communication. As we noted in Gammoh, “[t]his inquiry is analogous” to our analysis of whether the condom mandate is a complete ban on expression. 395 F.3d at 1128. In Gammoh, we held that the required two-foot separation  between dancers and patrons left open alternative channels of communication because the requirement “slightly impaired [the message],” but “the dancer’s erotic message [could] still be communicated from a slight distance.” Id. The same is true here. Measure B is a minimal restriction on Plaintiffs’ expression that “leaves ample capacity to convey [Plaintiffs’] erotic message.” Pap’s A.M., 529 U.S. at 301. Accordingly, the district court did not abuse its discretion in holding that the condom requirement leaves alternative channels of expression available.
2. Permitting System
The portions of Measure B’s permitting system left in place by the district court also survive constitutional
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scrutiny.9 Plaintiffs first argue that the remaining permitting requirements are impermissibly content based and therefore unconstitutional. But a licensing scheme that regulates adult entertainment is not unconstitutional simply because it is content based. See Dream Palace, 384 F.3d at 1001. Plaintiffs also argue “that the remnants of Measure B’s permitting regime left intact are [not] narrowly tailored.” See Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992) (holding that “any permit scheme . . . must be narrowly tailored”). As discussed above, narrow tailoring requires only that the remaining portions of the permitting scheme “promote[] a substantial government interest that would be achieved less effectively absent the regulation.” Colacurcio, 163 F.3d at 553 (internal quotation marks omitted). The permitting system’s requirements that adult film producers complete training about blood-borne pathogens and post a permit during shooting still serve the County’s interest in preventing sexually transmitted infections. That remains so even in light of the other portions of the permitting system that the district court enjoined. Finally, Plaintiffs argue that the permitting scheme grants county officials too much discretion, but the district court correctly concluded that the remaining permitting provisions leave little, if any, discretion to government officials. Accordingly, the district court did not abuse its discretion in 9 Plaintiffs also argue that the district court failed to conduct a narrow tailoring analysis with respect to the permitting provisions. We reject their procedural objection for two reasons. First, the district court analyzed the merits of this issue, albeit in the context of considering the motion to dismiss. Second, because Measure B’s condom mandate, which the district court analyzed at length with specific reference to narrow tailoring, is part of the permitting process, the court necessarily conducted a narrow tailoring analysis of the permitting scheme as part of its consideration of the condom mandate.
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denying preliminary injunctive relief with respect to Measure B’s remaining permitting requirements.
CONCLUSION
We have jurisdiction over this appeal whether or not Intervenors have demonstrated Article III standing. The district court did not abuse its discretion in holding that the invalid portions of Measure B are severable. Nor did the district court abuse its discretion in denying a preliminary injunction with respect to the condom and permitting provisions of Measure B.

AFFIRMED.
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114880cookie-checkFederal Court Rules Measure B Constitutional

Federal Court Rules Measure B Constitutional

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40 Responses

  1. Watch out for Porn fan boy Wniteacre going nutso with Media affilates over tthis. He’s a unpaid spokesman.

  2. Now when is someone going to start enforcing the law and show the “we do what we want crowd” that they indeed CANNOT just do what they want..there are laws one must abide by.. Just like I have to follow the laws at my job so do you guys!

    Get on it, Michael Weinstein.

  3. Mike: I ain’t a lawyer, but I know my First Amendment law. I think if you go back through my past posts, you’ll find that I pretty much called this exactly the way the decision came down. The court would find that there is no First Amendment protection to put the health of the public at risk, and the public includes porn performers.

    JRAxxx – laws are found unconstitutional by the courts. Not by you and me. A federal court found the law constitutional. A federal appeals court just found the law constitutional and reasonable.

    Porn has a choice if it still really feels that it has a constitutional right to unprotected sex. It, first, can appeal to the en banc court. That means it can ask he entire appeals court, and not just a three judge panel, to decide. The court doesn’t have to grant that request – it can determine that the three judge panel was correct and pass. In that case, porn can appeal to the Supreme Court. That is the ultimate voice on the constitutionality of condomless porn – unless you can get Congress to propose an amendment to the constitution regarding condomless porn that is then ratified by the states.

    Going to the Supreme Court sounds great. But, as I’m sure Sirkin and the other porn lawyers would warn Vivid, this is go-for-broke strategy. You have a conservative court, including Thomas and Scalia, who would like to have another shot at limiting porn. A loss could open the doors for further regulation and further definition around what is and isn’t obscene.

    Be careful what you wish for ……

  4. People in the industry have been shooting in Vegas for years. The reason they are getting away with it is because they have been shooting under the radar and not making any noise. But thanks to people like Petey Acworth ( hopefully, I won’t be sorry I mentioned his name. 😉 ) the spotlight has been shined on them. That and the fact, that it is illegal to shoot there (only legal in California and New Hampshire so no laws to protect you guys) and also the fact that under OSHA all the prostitutes are heavily regulated and the every stripper is licensed.
    Means you guys can run but ya can’t hide from the condoms. Because Michael Weinstein will follow you guys and win their too. LOL 🙂

  5. yes you did my friend and I thought oif that when I started reading the decision, heres my thoughts…at this point an appeal is a waste of money, the 9th circuit is traditionally one of the most liberal in the country…if they found the law valid, you might try for the en banc hearing but an appeal the SCOTUS is a waste of time.

  6. FSC, Dianne Duke, AVN, Mark Kernes, and all the other usual suspects lose again. Virtually every single argument that the FSC has been spouting for years now has been completely shredded. Any attorney worth $0.25 an hour could have predicted this outcome. Just like Izzy’s two state laws, every time they were voted on they won, only to be held up in the Appropriations committies’ where NO vote was taken, Measure B won at the ballot box, and has been upheld by a three judge panel.

    To the dupes, Kayden Cross, and Logan Pierce, you were sold a bill of goods. The FSC either had to know they would lose, or they are the worst attorney’s of all time. I wonder how easy it was for the FSC to manipulate these dupes into thinking they would be heros in the adult industry for ‘taking this stand.’ LOL.

    So will they go for the full nine judge panes…or the Supreme Court. Here is yet another chance for the industry to go to a higher court, but I doubt they will, setting an even higher precedent,,,,,but now those who were foolish enough to give the FSC money for this, (Stagliano) lets see if those wallets will remain open,,,,and when the statewide ballot comes up lets see who opens their wallet for the FSC, seeing how miserably they lost on this one.

  7. In this day and age to even be having this conversation is insanity. The sex industry is a business. As a business it falls under work place laws enforced by OSHA. The Measure B laws are not unreasonable they if anything are common sense. Put a condom on. How many HIV cases has LA based adult had in the last 20 years? I can remember many names probably well over 20. I spent 12 years working in adult a condom will not hurt your bottom line. Any one that says it will is so full of shit they need an enama. Does it limit a few different acts sure but in reality should they be preforming them anyways? Cum can land many places does not need to be in the pussy or the ass or even the mouth. I would guess you could probably push the mouth as ok. But reality the pussy and ass so what.

    What floors me is that Vivid is involved. Aren’t they the same company that for a few years went mandatory condoms? Seems Steve lost his brains. Shows how far Vivid has fallen in the last decade.

    I would imagine if most performers actually thought about it and took a step back they would enjoy not getting gonorrhea and chlamydia every few months. Condoms do help protect against those too.

    The industries stance on this makes zero sense nothing is gained by fighting this. If anything the industry needs some regulation. God knows the free speech fools aren’t helping anyone.

  8. Don’t forget Vegas is the next target. Probably Phoenix too. Stagliano has much bigger fish to fry then this. That baby issue is going to haunt him.

  9. In defense of Logan Pierce? He admitted in an interview that Steven Hirsch and Paul Cambria used/took advantage of/duped him..
    I mean how many current performers in this industry actually have the guts to speak out about anything or anyone? Answer? I can’t even think of anyone else. So kudos to him.

  10. Funny you mention that when Kayden was considering thios she called me for my advice. her argument was that though she was condom neutral and thought the biz should be that it provided her with a chance to leave her name in the history books(case law) and to get a little PR out of it. My advice to her was to do what she wanted because the only person she answers to is the one she looks at in the mirror.

    Thats usually my response when asked for such advice and I suspect she knew it would be, her real motive was likely feeling me out to see if I was going to take a stand on it and make an example out of her.

  11. And this is exactly why Kayden is a dupe. This lawsuit was NEVER about performers rights, it is about producers rights to make condom free porn. The free speech does not belong to the performers,,,,the speech here belongs to the producers,,,,producers get charged with obscentiy,,,,producers get cited by OSHA,,,NOT PERFORMERS.

    Kross and Pierce do not even realize that they are fighting for producer rights, not performer rights. SO Kayden thinks the industry SHOULD be condom nuetral,,,,except that does not exist in the real world, that is nothing more than wishfull thinking on her part, and has no basis in realilty.

    And Mike, at the end of the day she, like any other good little lap dog, answers to the FSC and the lawyers who so easily duped her into this loosing battle. Just what was the quid pro quo that Pierce and Kross agreed to in order to lend their name to this lawsuit to protect producers, not talent?

  12. People can shoot non-condom porn all they want to express themselves artistically. Shoot non-condom porn, rent out an art gallery, and go to town on charging admission. One could most-likely get away with that.

    That’s not cost-effective? Not the gov’s problem. It’s your problem. It means your “art” sucks.

    When they make it a job with pay different rules apply. When you make the bedroom a workplace what you do in the privacy of your bedroom no longer applies since you are mass producing it for public eyes.

    People need to go and put on some rubbers and make something worth buying.

  13. So Mike is 100% that the 9th Circuit is the most liberal federal circuit. What he understated is that it also the most liberal First Amendment federal circuit. If porn had a chance to win on the first round of appeal, it would have been in the 9th circuit. It lost. An en banc appeal is a waste of time for a simple reason, one that James Deen and company have never picked up on. You can spout freedom of speech, etc., all you want. But, to win on appeal, you have to prove that the trial judge was “plainly wrong” on the law. That is, the issue is so clear, Stevie Wonder would have gotten it right but this bonehead blew it. If you read the decision, you see that porn hung its hat to a large degree on grammar, what the appeals court called serverability. If your whole argument comes down to commas, you’re screwed.

    To get the en banc court to hear the case, they have to make the case that not only was the trial judge wrong, but the three judge appeals court panel collectively had its heads up its asses.

    To appeal to the Supreme Court, they have to argue that the constitution is offended – porn has to argue that the public health is trumped by porn’s right to share bodily fluids without a condom. Now ….. think about the debate we just went through over Ebola with governors sticking people in tents just because they had returned from a country where ebola was an epidemic with no suggestion that someone was infected.

    Last … CPanzram – as a result of this ruling, people in Los Angeles County cannot shoot non-condom porn to express themselves artistically. Porn argued that it is an artistic expression protected by the First Amendment. The law does not distinguish between Vivid Entertainment and a poor starving artist who wants to do the nasty with his girlfriend and shoot it on his iPhone if its other than a private encounter. Once its for public consumption – you shoot non-condom portn, rent out an art gallery, and charge admission – you’re covered by this ruling. Again, porn argued that it was a form of expression protected by the First Amendment and the law just said not so fast.

    None of that means LA County will choose to enforce it. That’s a whole different issue.

    With regard to Kayden, I’ve never been a fan. However, I don’t think she was duped on this, and, win or lose, I’m pretty sure she knew what she was doing when she did it.

  14. @BT

    People do non-condom film shoots of sex and take photographs of it all over the country and display them at art galleries that they profit from due to gallery admissions. There is nothing worse than going to a friend’s art show and spending 2 hours looking at photographs and 8mm film of him fornicating with people.

    That’s why I said “One could most-likely get away with that.” Unless it is highly-graphic I don’t see one going after that.

    I agree with you.

    If you are shooting it to sell on websites or ship across the country on DVD then obviously the answer is “no”. If you are paying the talent to appear in it then the answer is obviously “no”.

    With the way the industry is set it up it becomes complicated for them just to slide on the “art” defense. There is a chance they could do it, but it wouldn’t be worth it economically.

    So suit up and go in!

  15. Not only is 9th liberal but Alex Kozinski was actually removed from a case a few years ago for the less than vanilla porn he had posted on his unsecured personal server.

    To win this would require dismantling workplace safety and labor laws in America…not going to happen.

  16. Kayden was no dupe. She knew exactly what she was doing. Like Mike said, she wanted PR to further her career. And make more money. She could care less about the Health and safety of the performers. ( what a shock. 😮 )
    Here is part of an interview she did..

    “From the beginning, putting her name on the suit was a no-lose scenario, however it turned out in court. “Being a plaintiff let me do N.P.R., B.B.C., big mainstream interviews,” she says. Thanks to the highly publicized protest, “my name got exposure, which furthers my brand, which makes me more valuable to Digital Playground,” Kross’s main employer. “It’s a self-helping loop.”
    The more work a porn performer does outside of adult content, the more currency she banks within the agency, Kross explains, extending the popularity lesson she gave me before. Landing mainstream roles (like playing a porn star in an episode of The League, as Kross did in 2011) means making new fans who will trail the star back to porn. The Crossover Star of the Year award, one of the A.V.N.’s “most coveted,” says Kross, recognizes the performer with the most mainstream currency. Kross has been nominated, but never won. She has high hopes for 2014.
    Unlike Kross, Pierce was still new by Measure B’s birth. He didn’t understand as she did that the game is Exposure: porn star with the most by day’s end wins.”

    And kayden even admitted that she didn’t think they would win and didn’t care either! LOL

    “Even Kross, jaded, doesn’t think porn’s suit stands a chance. And she’s its female lead.
    “I don’t think we’ll win. That’s how it is,” she tells me. “That’s the world.”

  17. Logan pierce was the one who was duped. Hirsch and cambria took advantage of his nativity which he admitted in this interview…

    “I first spoke to Pierce three weeks after Cambria filed his suit. Three months later, Pierce’s enthusiasm is faded. “I haven’t heard dick from those people,” Pierce says. “Not one word from those lawyers since my name was written on that bill.”
    After all the frantic fundraising, press calls, wide-eyed commercials series, “Vote No On B” bannered buses, solemn Ron Jeremy YouTube spots, swarms of platinum-blonde and goateed picketers in front of Hustler Hollywood chanting “Keep my wienie free/ No on Measure B,” countless interviews and tweets and retweets by everyone from M.I.L.F.-niche-staple Lisa Ann to perpetually eye-brow-cocked porn boy toy James Deen; and after hiring Paul Cambria—who don’t come cheap—porn has done nothing?
    Seems not.
    Over the last fourteen weeks, once the phone stopped ringing with Cambria or Vivid C.E.O. Steven Hirsch on the line, vetting Pierce to make sure he “wasn’t a moron, didn’t represent them poorly,” he says, Pierce’s righteous chest deflated. He wondered why a kid who’d just entered the industry was entrusted such a representative role. “What about the guys that have been in porn for 20 years? Shouldn’t they have a voice?” he asked himself.
    Unless those industry vets were seasoned enough to know what this was from the start: A noisemaker for its own sake. Maybe Pierce took the role—“which was casted for, by the way; Vivid wanted one female and one male,” Pierce tells me—not because he was brave, but naïve.
    Pierce now suspects his bosses “just wanted something on paper that they could spit out and make into a public statement.”

  18. And lol.. Kayden isn’t fully reassured by the testing procedures either. The only reason she feels secure at all is because she is popular and has more pull on set than someone who isn’t.. ( I think she retired so now it would be felt, was, had and wasn’t) lol she REALLY DOES care about the health and safety of the performers! 😉

    “But the longer we speak, the more her script slips. Turns out Kross isn’t fully reassured by porn’s testing procedures or some biophysical trust built between performers. She’s secure most of all because she’s popular.
    Kross, who is 27, has killed it in porn since she first unzipped for the camera. Hot enough to land video and magazine covers, Kross says she “has a lot of pull with the fans.” Which translates into pull on set. If she “asked for the moon,” she laughs, producers would “hand it to her with a fucking bow on it.”
    Kross’s pull leverages her healthy choices: she picks whom she performs with and when. Less popular performers risk their jobs if they refuse to work bareback with a co-star who hasn’t been tested in nearly month; top stars like Kross don’t. She says no thanks, producers find her another warm body.”

  19. @BT

    Iirc I mentioned the other interesting part of this…that they took it to federal as an end around voted legislation hoping for a more favorable judicial ruling that would amount to federal legislation covering the entire 9th circuit.

    Also noticed that the educational requirement with adherence to OSHA didn’t go away..though I haven’t come across any county-approved educational programs yet.

    Still don’t think this is done. I think once it’s done it will include oral, vaginal and anal to meet governments overriding interest in preventing STI w/o reference to HIV or higher than general public STI rates.

    I think this could also be a stepping stone to reducing HIV to its proper place under the umbrella of STI without separate distinction and the stigma it retains today.

  20. @Lurk

    It’s funny how digitally removing condoms will probably go from “that won’t work” to “it is better than not doing anything”.

  21. @cpanz

    Do you mean removing them is better than disappointing consumers that don’t pay but generate tons of advertising and affiliate revenue?

  22. All over the country isn’t the issue. The law in question was passed in LA County. The court decision as it is doesn’t apply outside LA County – it simply finds that the law as passed in LA County is constitutional. So, if someone wants to shoot condomless sex in LA County, technically its a violation of the law that was passed. Calling it art versus porn doesn’t change anything – the First Amendment does not make a distinction between art and speech – it doesn’t define art. That’s because one man’s art, one man’s expression, is another man’s rubbish. Vivid, Kayden, and the dude argued that what they are doing is artistic expression – that its art. The court ruled that its constitutional to say that you can’t do that without a condom – at least if its for public consumption.

    I’m under no illusion that the County of Los Angeles is going to set up porn police and start cracking down. Enforcement is a whole different issue.

    Now, here’s why porn has to worry about the ruling. While it simply rules on a law passed in LA County, Las Vegas, the state of Nevada, Phoenix, or the state of Arizona – heck, the state of California – could now pass similar laws, and use the 9th circuit’s ruling as justification. Again, I’m not suggesting that these other jurisdictions care or will do anything; only that as a result of the 9th circuit ruling (all those places are covered by the 9th circuit) that they could.

    Art doesn’t matter – there is no First Amendment exception for “art” because no one knows what art is and the court isn’t going to define it.

  23. It’s not over if Vivid decides its not over. Per my first post, Vivid can ask for an En Banc review. Even if the court turns that down, which is likely, it could take some time for the court to get around to handing that down. Then, Vivid could appeal it to the Supremes. Again, even if SCOTUS declines to hear it, that could take some time. If they do decide to hear it, that could take more time. Vivid could drag this out another two years if it has the stomach for it.

    It’s unlikely Congress would do something about this – although Congress now has ammunition. The last time Congress decided to get involved in porn was the Meese Commission when Reagan was in the White House. That went nowhere. Now, Pat Truman, who heads up one of the anti-porn advocacy groups, is a really, really smart and really well-connected former federal prosecutor. It is conceivable that a group like his could take this ruling and use it as the basis to lobby conservative members of Congress to pass federal legislation requiring condoms in porn, but that doesn’t seem likely. Its hard to imagine who would stick up for porn during those hearings. I don’t think anyone wants to be on side of DP’s and double anal in their next campaign.

  24. FSC begging for more money to keep the fight going in 5,4,3,2…….
    Wouldnt it be great if AHF got hold of Logan Pierce, and simply asked Logan to on the record for them, telling the truth about his ‘role’ in this fiasco.

  25. Right now federal OSHA is working on record keeping portions of the fed equivalent of Cal/OSHA 5193 Asa stepping stone to revising the entire BBP…so I’m sure at some point that will also come Into play.

  26. Anyone recall how Rudy Giuliani got the nickname ‘duty Rudy’? The first amendment display and funding wars his removal of an art work caused from NYC to DC and beyond?

  27. At this point, Logan Pierce and Kayden Kross are irrelevant to any action going forward. They argued economic harm – Pierce said that as a result of a condom mandate there would be fewer scenes filmed and as a result, fewer opportunities for him to ply his trade. I didn’t read the entire decision, but the court didn’t address that up front. They really hung their hat on the First Amendment issue. If you think about it, Pierce’s argument is the equivalent to saying: if you make construction workers wear hard hats and steel toed shoes, there will be less construction activity and I’ll have fewer opportunities to work, so you should allow me to get a concussion and lose a toe.

    Kayden’s argument was similar but different. She argued as a small producer, not really a performer, saying that she films her scenes in her home in LA County. If she complied with the law, traffic to her site would drop off, so she would be compelled to go outside LA County to film in venues that don’t require a condom and she couldn’t afford that expense. Hers was really the argument of a small producer. Again, the court didn’t focus on the cost to producers or impact on work to actors. It said that LA County has an interest in public health and they were convinced that there is a higher incidence of STD’s in the porn community than the community at large that could be reduced through the use of condoms. Further, they did not think that porn’s right to express itself was harmed by the condom requirement – specifically, they did not buy porn’s argument that its primary message is sex with abandonment, no consequences and no responsibilities.

    End of the day, Pierce and Kross played no role in the decision. They’re just pretty window dressing.

    So again, porn can keep fighting all the way to the Supreme Court. But it is a go for broke strategy. They just lost in the most liberal appeals court in the country, especially with regard to the First Amendment. As it stands, this ruling could be used by other jurisdictions like Las Vegas, Phoenix and Miami to require condoms and regulate how porn is produced in their jurisdictions. However, porn companies in those jurisdictions could sue over those laws and perhaps get a different outcome. If that happened in Florida, for instance, an appeal would be heard in a different district from the 9th and maybe have a different outcome. That’s happened in rulings over gay marriage.

    However, appealing this all the way to the Supreme Court is a go for broke strategy. Lose there, and any ruling would automatically apply to any locale in the US. Porn will either bank on lack of enforcement – Yeah, its the law in LA County, but no one cares or is going to enforce it; or relocate to an area that just doesn’t care – yeah, Las Vegas knows porn is being produced in the city or county limits but doesn’t care as long as pornographers pay their taxes, keep a low profile, act like adults, and no one dies. They’d be smarter to fight this one battle at a time rather than roll the dice in the Supreme Court.

  28. @BT

    Slogged through the whole 29 pages of the opinion and skimmed the attachments. You’re spot on with what I saw.

    Two things really stood out for me…the STI and a reference to how they undermined their arguments on permitting.

    Up front the Condom mandate survives because it has minimal effect on expression and narrowly tailored to meet governments overriding interest of reducing rate of STI.

    The judge discusses that LACPH was a reliable source of data but also pointed out that they don’t do anatomical testing which means the numbers are likely higher. In one area they mention reducing ‘higher’ rates then later mention simply government duty to prevent or minimize STI.

    All that leads me to believe it isn’t done…the industry will argue rate comparison and government health will argue district court erred by omitting ‘oral’ from Measure B.

    At the district court plaintiff’s argued that Measure B had drastically reduced the number of films produced in LA and in total because they depend heavily on the ‘regular’ film industry infrastructure in LA. On appeal they argued measure B wasn’t narrow enough and largely ineffective because of the adult film industry high mobility allowed them to easily cross county lines. So their earlier argument undermined their appeal argument with respect to mobility but doesn’t address industry production reduction overall.

    With respect to an En Banc hearing the defendant intervenors would still be out of it but the government health would still be able to show up and would likely defend their position to act as mandated to minimize public health concerns which includes workplaces. The health departments position of defending their function without taking a stand on the actual measure is a smart move because it solidifies general industry safety for easy adoption elsewhere. Folks aren’t mentioning the county approved educational portion of this measure or speaking about how it’s been applied to other industries eg food with specific employees mandated to attend and pass county approved food safety educational programs.

    The fat lady hasn’t sung on this one.

  29. Jamie, unfortunately at this juncture that is probably the best solution and hope that the feds don’t take Weinfuck’s likely advice and send in the National Guard to enforce AHF’s interpretation of federal OSHA regs (federal takeover of Nevada OSHA is not likely to happen at least in the short to medium term over a couple of HIV cases which may or may not be attributable to porn performing). The biggest fear is the political climate changing in Nevada and their government taking a California-esque turn to attempt to run porn out of there as well — which is a long-term problem and not a short term one.

    Also, Jamie my understanding of the meaning of Shalom is essentially peace be with you. With that understanding (I am not Jewish so if there is another definition I am unaware of it) I wish you and your family peace during this holiday season as well. You have a wicked sense of humor (so do I) and some interesting opinions whether we agree or not — both helpful to the conversation here. Jamie, Happy Hanukkah and Happy New Year! Also Merry Christmas to everyone else!

  30. “DENIAL IS THE BACKBONE OF PORNOGRAPHY WHEN IT COMES TO HEALTHCARE” Quote from Sharon Mithcell.

  31. “Some days, you know, when I see a goung girl walk in and i just know that she’s going to gt run over b all these producers and agents and types of things thatshe probably hasn’t experienced or even thought of experienceing, I think “am I just fattening them up for the kill? What am I doing?” Sharon Mitchell.

    to answer your question Mitch, YES.

    “But they’re not looked at as performers. They’re looked at as a commodities; they’re looked at as body parts that are going to be edited into a prouct thats going to make money.”

    http://www.democraticunderground.com/125526713

    Did you ever wonder why producers never gave a dime to AIM?

  32. @BT

    Who do you think is going to be monitored? The porn industry or an artist without a formal company. What I’m saying is that the only way you may be able to get away with it is to do it as art and that isn’t cost-effective for porn. If you aren’t getting paid then how is it work? If one is fucking in front of a camera it doesn’t instantly become “work”. It doesn’t make anyone involved become an “employee”. Is an artist fined for not wearing a hard hat and having regulation ladders while building a sculpture out of wood in his own home? No. It is not work. Now, if he has people doing internships and paid assistants providing help, then yeah. One could have something there to go after them with.

    I agree with you. The industry is breaking the law if they don’t use condoms and forcing them to use condoms is entirely legal. If they operate in their current fashion without condoms then they are breaking the law.

  33. I think there is one fundamental thing wrong with this decision. They say the condom does not take away from the ‘erotic’ message. The problem is, the message in today’s porn is not meant to be erotic, it is meant to be degrading, humiliating, and dehumanizing, and the use of a condom surely takes that message away. Using a condom sends the message of some sort of respect between the participants, which there surely isnt.

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