Ninth Circuit Hears Measure B Appeal

PASADENA, Calif.—The appeal of Judge Dean D. Pregerson's ruling denying a preliminary injunction to Vivid Entertainment Group and its co-plaintiffs, including performers Logan Pierce and Kayden Kross, was argued this morning before the Ninth Circuit Court of Appeals, with the three-judge panel asking pointed questions to both the appellants and the appellee, which in the current situation is AIDS Healthcare Foundation (AHF) rather than the lawsuit's official defendant, Los Angeles County. The panel itself was an interesting mix. It was headed by Ninth Circuit Chief Justice Alex Kozinski, who at one point had assigned himself to be the trial judge in the Ira Isaacs obscenity trial but was forced to recuse himself when it came out that the judge owned a sex-related website. The panel also included Ninth Circuit judge Susan P. Graber, a Clinton appointee, and Judge Jack Zouhary of the U.S. District Court for the Northern District of Ohio, a George W. Bush appointee, who was sitting in this case by designation of Judge Kozinski, as occasionally happens with district court judges in appeals court cases. Argument began at about 10:30 a.m., with First Amendment attorney Robert Corn-Revere taking the rostrum to note that what he was about to argue was "an unusual appeal," since it was being taken before the lawsuit itself even went to trial. The appeal was of Judge Pregerson's Order of August 16, 2013, in which he granted some parts and denied other parts of AHF's Motion to Dismiss and plaintiffs' Motion for a Preliminary Injunction, as well as vacating altogether the plaintiffs' Motion for Judgment on the Pleadings—and within which he disregarded the U.S. Supreme Court's ruling in Hollingsworth v. Perry, decided two months earlier, which, had the judge abided observed it, would have ended AHF's participation in the case altogether due to their lack of standing. However, with Corn-Revere noting that the issue had been briefed twice and that the panel would undoubtedly consider those pleadings before rendering its decision, standing was not a topic that was argued this morning. Instead, what Corn-Revere did discuss were other infirmities in Judge Pregerson's order, including the judge's essential rewriting of Measure B, removing hundreds of words from the law—Corn-Revere figured that the judge had struck roughly three-fifths of its language—in the process redefining the meaning of "adult film." The judge also enjoined Measure B's permitting requirements such that the lack of revenue coming to the county from that source would defund the mandate, possibly putting taxpayers on the hook for adult movie set inspections and subsequent hearings to determine damages. Such editing runs afoul of at least a couple of decisions, according to Corn-Revere, who referred to Acosta v. City of Costa Mesa and People v. Nguyen—both of which essentially state that judicial editing that changes the intent of a law is suspect if not outright improper, though Nguyen qualifies that a bit to say that if some terms are "grammatically separable," the process may pass judicial muster. Corn-Revere argued that with Measure B's funding means now voided, Judge Pregerson's Order would "operate as a de facto ban on adult filming" in LA County, and he questioned whether county voters would have passed the measure if they had been made aware that they might be forced to pay the costs of enforcing it. However, Judge Graber asked whether such filming wasn't already in danger from existing health department rules such as the Health Code's Section 5193, which requires medical personnel to take barrier-protective measures to prevent exposure to STDs? Corn-Revere responded that Section 5193 had existed for about 20 years but had only recently been applied to adult filming, and that in any case, Measure B's licensing requirements were an effort to override CalOSHA's attempts to apply Section 5193 to the adult industry. Judge Graber then asked Corn-Revere how the county's restaurant rating system was different in terms of statutory infringement, with respect to Vivid's right to make adult movies, and Corn-Revere replied that rating restaurants had no First Amendment implications, whereas the requirement of condoms would affect an adult movie's message. Judge Graber then changed her question to ask how a possible local ordinance requiring mainstream movie producers to undergo fire safety training prior to making a movie about fires would be different from Measure B? Corn-Revere replied that it would be necessary to see such an ordinance before the question could be answered, though after the hearing, First Amendment attorney Paul Cambria, who attended the hearing but did not take part in the argument, suggested that the proper comparison would be an ordinance telling mainstreamers how to shoot a movie about fires, rather than whether they should be trained in how not to get burned. Judge Zouhary got in the final question to appellant counsel, asking whether Measure B would even be effective in forcing adult producers to use condoms in their movies? Corn-Revere responded that the measure would have no positive impact on performers because producers could easily make their movies outside of LA County, and that in any case, the measure could not force adult performers to use condoms in their personal lives, which activity might adversely affect their health. When it came time for appellee AHF attorney Thomas Freeman's argument, he began by denying that Judge Pregerson had cut off funding for the permitting program, arguing that the County Health Department was tasked with setting a permit fee schedule that would fund the program, though he admitted that he was unable to prove that such a fee schedule would make the program funding-neutral—but that he believed the county would be able to set a fee to cover all of its Measure B-related expenses. He called it a "very technical requirement." Much of Freeman's time at the rostrum was taken up responding to questions about to what extent Judge Pregerson was legally entitled to edit Measure B's language, though he managed to get in the claim that a 2012 letter authored by County Public Health Director Jonathan Fielding indicated that the adult industry's testing regime was not sufficiently effective—however, that raised the question of whether the letter had been part of AHF's case before Vivid took its appeal. Eventually, the parties appeared to agree that it had at least been referred to in a timely fashion, though the letter's conclusion stated in part that Fielding didn't believe that Measure B would be effective in reducing STD infections among performers. Judge Kozinski waited until the appellee's argument was half over before asking his first question, which was whether "common sense" tells us that if Measure B were upheld, adult producers would simply film their movies outside the county (as is already the case with Vivid itself)? Freeman responded that the question was "speculative," but Kozinski continued along that line, saying that even if the entire country were covered by a condom mandate, couldn't adult producers just shoot in Canada or Mexico, meaning that Measure B would be "so easy to circumvent"? Freeman evaded the question by noting that adult companies had already stated that they wanted to stay in the Los Angeles area because it has a "good infrastructure" for adult production, and that in any case, other cities and counties could thwart adult industry movements by passing measures similar to Measure B in their own jurisdictions. The final part of Freeman's time was taken up in argument over whether Judge Pregerson had gone too far in editing Measure B to keep it judicially viable, with Freeman essentially pitted the Nguyen ruling, which came down in January, against Acosta, which was decided early in 2013. Judge Kozinski asked Freeman to submit argument supporting the Nguyen case by the end of business today, a feat which Freeman was able to accomplish. At noon, after argument had been completed, Vivid co-owner Steve Hirsch, who attended the hearing with his sister, Vivid VP Marci Hirsch, commented, "We were really pleased that the court was very aware of the issues, very well prepared and we were very pleased with the attention that they paid to the important issues in the case." Also in attendance at the hearing were attorney Allan Gelbard, Corn-Revere's associate Ronald London, Free Speech Coalition CEO Diane Duke, its Membership Director Joanne Cachapero and Boardmember Mo Reese. It is unknown how long the panel will take to deliver its ruling, but one thing is for sure: The entire adult industry will be anxiously awaiting the outcome of this appeal. Pictured, l-r: Diane Duke, Marci Hirsch, Robert Corn-Revere and Joanne Cachapero.