Judge Pregerson Issues Split Decision on Measure B

LOS ANGELES—U.S. District Court Judge Dean D. Pregerson issued a ruling today in Vivid v Fielding that upholds the constitutionality of mandatory condoms while striking large chunks of the new Measure B law that gave the County too much discretionary power in terms of revoking permits, conducting warrantless searches and even charging a fee for permits. Vivid Entertainment and adult performer Kayden Kross sued County officials in July, seeking to have the law invalidated and enjoined on First Amendment and other grounds. The judge ruled today on the plaintiffs' motion for a preliminary injunction and the intervenors' motion to dismiss, denying and granting in part for each, and vacated the plaintiffs' motion for judgment on the pleadings. In an early analysis of the ruling, attorney Michael Fattorosi wrote, “In short, we still have to contend with Measure B, but the fees are gone, the searches are gone, the permit stays but it cannot be suspended or revoked without a proper court proceeding and thus producers cannot be forced to ‘shut down’ and prevented from shooting other movies.” Fines still can be levied against producers, but enforcing the law will now be much more difficult for the County, whose motivation in that area has not been what one would call inspiring to begin with. Judge Pregerson also had a problem with Measure B’s definition of what constitutes an “adult film.” Specifically, he wrote, “Although Plaintiffs have not raised the issue, the following clause of the ‘adult films’ definition is problematic: ‘and/or any other sexual activity that may result in the transmission of blood and/or any other potentially infectious materials.’ The use of ‘or’ indicates that filmed ‘sexual activity’ that ‘results in the transmission of . . . other potentially infectious materials’ requires a Measure B permit. Sexual activity could mean many things. Potentially, kissing could qualify, as saliva may contain infectious materials. Therefore, the portion of adult film’s definition discussed in this footnote is unconstitutionally overbroad and vague.” Perhaps anticipating a negative reaction to his ruling, and certainly admitting that he has seriously severly restricted the new law, Judge Pregerson ends his 34-page ruling with a suggestion that Measure B supporters should be satisfied that the core provision of the law was left intact. “Here,” he writes, “in light of Measure B’s stated purpose of preventing the spread of STIs and for the reasons discussed above in the operational analysis, it seems that those who ‘favored [Measure B] would be happy to achieve’ what remains of it.” That message was directed not just to the main sponsors of Measure B, the AIDS Healthcare Foundation (AHF), but to the electorate who passed Measure B, who he ruled are presumed by the court to be “happy to achieve at least some substantial portion of their purpose.” Indeed, AHF president Michael Weinstein did sound happy with the ruling that upheld four of the seven counts contained in the Vivid lawsuit. In a statement issued in the aftermath of the ruling, he said, "Today's ruling that requiring condoms in porn is constitutional is just a tremendous, tremendous victory, one that will go a long way to safeguard the health and safety of those adult performers working in the industry.” Check back with AVN for a more thorough analysis of this important ruling, as well as comment from the plaintiffs and their attorneys.