Monday, August 19, 2013

Measure B, The Opening Battle Resolved: Still Standing, But Not Quite So Strong

Well, the first of what will be many battles over Measure B, the Los Angeles County condom mandate law passed by referendum last year, has been a stalemate.

Last Friday, US District Judge Dean Pregerson made his long awaited ruling on the preliminary motions on the lawsuit attempt by plantiffs VIVID Entertainment, Kayden Kross, and Logan Pierce, and by the AIDS Healthcare Foundation (acting as defendants on behalf of the county) to either throw out the law as unconstitutional or dismiss the case altogether.

In essence, Judge Pregerson denied them both: rejecting VIVID's appeal by essentially upholding the basic essence of Measure B, but also rejecting AHF by striking down some significant chunks of the law.

A few media reports (such as this one from the Associated Press) mistakenly reported that Measure B had been fully upheld and that the condom mandate was cleared in its entirity, and that was the spin that the AHF decided to place in their usual propaganda press releases. While it is true that Pregerson's ruling did generally support the concept in general of the condom mandate, it did NOT by any means give it a free pass, nor did it totally resolve the issue of whether the referendum could still be striken down on other principles following a full hearing.

And indeed, the portions that were struck down in this preliminary ruling could have a decisive impact on whether the law can be fully and effectively enforced or funded.

For starters, here's Judge Pregerson's initial ruling dismissing VIVID's attempt for an immediate injunction against Measure B (all snippage courtesy of this article):

“After reviewing [the AHF’s] motion to dismiss, the court grants dismissal of [Vivid’s] claim that ballot initiatives cannot, as a matter of law, implicate First Amendment rights, that state law preempts Measure B and that Measure B violates [Vivid’s] due process rights with the exception of [Vivid’s Fourth Amendment claim over search and seizure],” Pregerson ruled Friday.
Keep in mind that VIVID and the other plantiffs had fought to keep AHF out of the trial due to the fact that since they were a third party in this case and not a direct enforcer of Measure B like Los Angeles County would be, they had no legal standing to be in the case as a defendant. Judge Pregerson rejected that motion last June, saying that AHF had perfect legal standing to defend the law since they were the ones to originally sponsor and shepherd the law through the LA County legal and political system. The plantiffs here had attempted to cite the recent US Supreme Court decision on the statewide Proposition 8 initiative banning same-sex marriages, in which the pro-Prop 8 groups were denied legal standing to pursue defense of their favored law through the Federal court system.

For the most part, it seems that Pregerson was pursuing the traditional precedent that ballot initiatives approved by the public outweigh individual concerns about due process and First Amendment protections, and that Measure B was justified under the objective of protecting the public in a "direct and material" way against disease.

Problem is, what "seems' doesn't necessarily turn out...and Pregerson's "howevers" open up some gaping holes which could potentially blow the entire condom mandate law apart, or at least make it effectively worthless to enforce.

Here's how the judge rejects AHF's motion to throw out VIVID's case entirely:

But Pregerson said that Vivid has standing in the case and that “in light of the potential First Amendment concerns that Measure B implicates, the costs and consequences of complying with Measure B, and the county’s expressed intent to enforce Measure B, [Vivid and co-plaintiffs] have standing to challenge it.”

The federal judge further ruled that the AHF’s motion to dismiss Vivid’s First Amendment claim is denied, saying that “not all conduct receives First Amendment protection; only expressive conduct is considered speech and implicates the First Amendment.”

“Presently at issue is whether engaging in sexual intercourse for the purpose of making a commercial adult film receives First Amendment protections. The court is aware of no case that has analyzed this issue,” Pregerson ruled.

“However, given the multitude of cases that have analyzed restrictions on adult entertainment under the First Amendment, this court concludes that sexual intercourse engaged in for the purpose of creating commercial adult films is expressive conduct, is therefore speech, and therefore any restriction on this expressive conduct requires First Amendment scrutiny.
 In short, it's still possible that Measure B could ultimately be rendered unconstitutional on grounds of violating porn perfomers' free speech rights, and the burden of proof lies with AHF to prove otherwise. Pregerson continues:

“Measure B’s stated purpose is to minimize the spread of sexually transmitted infections resulting from the production of adult films in Los Angeles. Because this purpose focuses on the secondary effects of unprotected speech, rather than the message the speech conveys, it will be reviewed under intermediate scrutiny.

“Under intermediate scrutiny narrow tailoring, Interveners must demonstrate that the recited harms’ to the substantial governmental interest are real, not merely conjectural, and that the regulation will in fact alleviate those harms in a direct and material way.’

“While an ordinance is not invalid simply because there is some imaginable alternative that might be less burdensome on speech, the Interveners must prove that the statute does not burden substantially more speech than is necessary to further the government’s legitimate interests.”
Contrary to the reports of the Associated Press, and the propaganda of AHF, that has yet to be ruled on until a full trial has proceeded. While Judge Pregerson may yet rule as such, he simply hasn't done so as of those victory laps are way premature.

Equally important are the areas where Judge Pregerson did invalidate as unconstitutional some of Measure B's main enforcement tools; such as, the County's power to revoke and/or suspend the permits required for adult productions to shoot condomized scenes. Here's how the judge yanked them out as unconstitutional:

“[Vivid focuses] on the procedural safeguards relating to revoking Measure B permits,” Pregerson said. “Prior restraints that target adult entertainment, as Measure B does, must provide the following procedural safeguards: ‘The licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained, and there must be the possibility of prompt judicial review in the event that the license is erroneously denied.’

“These provisions of Measure B are, thus, unconstitutional because they provide for suspensions and revocations before a judicial determination,” he ruled.
In other words, you had damn well better have a warrant in your hand before you can close down a shoot for noncompliance with the condom mandate, and those who are legally busted have a right to a hearing before a court of law to defend themselves and their permits. And, they can continue to shoot scenes while their cases are litigated, too.

And then, there is the nature of the permits themselves:

“Additionally, government officials cannot have unbridled discretion over permits that implicate First Amendment activity. Here, in order to receive and keep a permit, the following is required: pay for the permit, complete an application, conduct blood-borne pathogen training, post the permit on the worksite and use condoms during anal and vaginal sex. These criteria are clear and do not leave much, if any, room for discretion.”

Pregerson said that the provisions are too broad and not limited to Measure B’s requirements, and that it applies to conditions “reasonably suspected” to be “suspected of causing” the transmission of unnamed diseases.
Remember that Measure B would require that porn producers acquire and purchase TWO permits: one for the actual shooting of the scenes (via FilmLA), and another from LA County Health Department requiring the shoot comply with the Cal-OSHA code standard for "bloodborne pathogen" prevention (that's the requirment that calls for PPE/glove/goggle/apron/face shield protection) AND also require condom use for all anal/vaginal sexual action.

(The actual proposed Cal/OSHA standard, by rule, would also forbid any skin contact with "internal fluids" that could potentially spread STI's as well....meaning that even facials and body shots could be forbidden as well. That would leave condomized internal shots -- anal, oral, or vaginal, with condoms -- as the only permissible means of closing sex scenes. Oral sex would probably still be allowed...but remember that Cal/OSHA wanted to require preapproval through stringent testing and Hepatitis B treatment before each individual oral sex scene...or the use of condoms and/or dental dams.)

Judge Pregerson's ruling here would seem to invalidate the attempt to impose these "bloodborne pathogen" standards on porn shoots. That's not a bad thing, since these standards were created for sites where the risk of bloodborne pathogen infection are far greater than mere people engaging in sex.

Even the acquisition of said permits was modified by Pregerson's initial ruling, which declared that while LA County could still require permits and impose the condom mandate based upon those permits, they could not charge fees for those permits unless they could prove that they were "revenue neutral", meaning that the fees paid only for what was needed to enforce the mandate. That in and of itself is big in that LA County had been depending on milking the porn studios in thousands of dollars in order to fund the enforcement of the mandate, rather than tapping into their own scarce funds. With that resource denied, it makes enforcement a much harder option for LA County. On the other hand, it makes it much more likely that AHF would simply bring their fat wallets in to enforce the law...which might explain why they are so eager to detach the City of Los Angeles from the LA County system to rule as their own personal fiefdom.

As far as VIVID's claims of violations of due process and prior restraints went, Judge Pregerson did not dismiss them off hand, and even ruled in their favor in one aspect:

As for due process claims, Pregerson weighed in on Vivid’s claim that Measure B authorizes an unconstitutional system of warrantless searches and seizures. He denied dismissal of Vivid’s claims.

“Given that adult filming could occur almost anywhere, Measure B would seem to authorize a health officer to enter and search any part of a private home in the middle of the night, because the suspects violations are occurring,” Pregerson ruled. “This is unconstitutional because it is akin to a general warrant.”

Pregerson said that there were some remaining Vivid claims over Measure B that are likely to succeed on their merits: the fees provision and the administrative search provision, as well as others.

“The fees provision and the prior restraint provision concerning Measure B’s broad revocation policy (i.e. that a revoked permit means a producer cannot work on any adult films, instead of simply the offending film) are likely to succeed on the merits because [the AHF has] offered no evidence that these provisions are narrowly tailored,” Pregerson said.

“Once a plaintiff shows that a constitutional rights claim is likely to succeed, the remaining preliminary injunction factors weigh in favor of granting an injunction,” he said in the ruling.”
Nevertheless, in his summation, Pregerson seemed to comfort the defendants (meaning AHF) in recounting that Measure B, while weakened somewhat (and probably more than many can see), is still the law in Los Angeles County:

“The court must decide whether Measure B remains 'operational' without the offending language,” he said. “Here, adult film actors must still use condoms. A permit is still required. Although the permit may not be modified, suspended, or revoked, fines and criminal charges may still be brought against offenders ….”

“While administrative searches cannot occur, nothing prevents law enforcement from obtaining a warrant to enforce Measure B,” he ruled. “Regarding fees, since there is no evidence that Measure B’s fees are revenue neutral, there is no reason to believe the department’s Measure B duties cannot be performed without fees — or performed at least until the fees’ defect is cured, either by enacting a new, constitutional ordinance or providing this court with evidence of revenue neutrality.”
Michael Fattorosi, long time legal attorney representing adult industry interests and the owner of the AdultBizLaw blog, has opined that this decision makes Measure B much more unenforceable because LA County simply won't have the manpower or the funding necessary to effectively monitor and raid every adult shoot or obtain enough legal warrants for their raids or even have the funding for all the adjudication required to resolve fines or criminal charges.

That probably won't stop the champagne bubbles from popping over at AHF HQ, or the BusinessWire-created press releases crowing their "victory". (Nor will the disappointment of the plaintiffs, who immediately promised an appeal of Pregerson's decision to a higher court; VIVID CEO Steve Hirsch sad as much in a statement following the ruling.)

But let it be known that this is not the end, or even the beginning of the end....just the end of the beginning of what may become a legal rumble that could decide the fate of the adult industry in Los Angeles County, if not the state of California.

And as always, we here at BPPA will keep you informed of every turn of the screw.

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