PASADENA – Hoping to overturn the new county law requiring the use of condoms in adult film shoots, the porn industry argued before a federal appeals court on Monday that the measure is unenforceable and violates the First Amendment.
Vivid Entertainment, one of the largest U.S. adult film companies, offered its brief opening arguments before the U.S. Ninth Circuit Court of Appeals, in a case filed after a federal judge last year delivered a mixed ruling on the issue. Vivid is taking the lead for the industry in trying to strike down Measure B, the initiative approved by Los Angeles County voters in 2012 that mandated the use of condoms in porn production.
Attorney Robert Corn-Revere, a specialist in First Amendment issues who represents Vivid, said Measure B is difficult for the county to enforce and that it has a negative impact on the region’s economy and taxpayers.
Measure B requires adult film studios to apply for public health permits and for the county Department of Public Health to lead inspection and enforcement efforts. Revenue from those health permits was supposed to go toward paying for enforcement. But few studios have applied for permits, with many of them choosing to operate outside of Los Angeles County, and even out of state, after Measure B passed.
“We don’t need this kind of law in the state of California,” Corn-Revere told the panel of three judges. “It is hostile to businesses and hostile to the adult film industry.”
AIDS Healthcare Foundation introduced and supported Measure B, arguing it will prevent sexually transmitted diseases from spreading from within the industry to the mainstream. Studios that violate the law and do not apply for permits or require condoms could face civil fines and criminal charges.
During the hearing, Chief Judge Susan Graber questioned Corn-Revere, asking if by comparison pyrotechnics were used on a major movie production site and there were injuries and safety issues, shouldn’t there be some sort of government training or involvement to reduce those accidents?
Corn-Revere said later that Measure B issue has more to do with impacting content.
“You’re talking about regulating the content of films,” he said in an interview. “The Constitution doesn’t make choices on whose speech it can regulate.”
He also said there are geographical limitations to Measure B, which he said is supposed to protect public health. The law is only active in Los Angeles County, but doesn’t protect actors working anywhere else statewide, Corn-Revere added.
Corn-Revere also noted the Los Angeles Department of Public Health chose not to defend the measure, which is telling. From the beginning, county health officials have said such a measure would be difficult to enforce and expensive and ineffective. “They (AHF) say it’s a safety issue, but this is unique,” he said. “We’re dealing with a ballot initiative where the government is not defending the measure.”
An attorney for AHF argued that there is enough evidence to prove that sexually transmitted diseases have increased within the adult film industry and that condoms will reduce the number of cases.
Universal City-based Vivid filed the lawsuit against the county health department in January, saying Measure B violated actors’ rights to free speech and expression within the estimated $6 billion industry.
Last August, U.S. District Judge Dean Pregerson ruled that while making actors wear condoms during porn shoots doesn’t violate the First Amendment, enforcing such a law raises constitutional questions. Based on that decision, Pregerson denied the adult film industry’s motion for a preliminary injunction against Measure B.
Pregerson agreed with the industry that some of the provisions and language of Measure B were too vague, and did not go far enough to explain condom use when other sex acts were being filmed. He also questioned the manner of inspections to be conducted, and agreed with the industry that their rights could be violated.
The three federal appellate court judges who heard the arguments in Pasadena Monday asked an attorney with AHF to produce additional information before proceeding. A date for a final ruling is undetermined.
Michael Weinstein, the executive director for AHF, said Graber’s questions about fires on a major movie production seemed to mean she understood that there was a parallel between condoms on set and worker safety in general.
“When they were discussing fire training that seemed to me very telling, because it was talking about some reasonable standard,” Weinstein said. “Again it’s all like tea leaves, but that seemed to indicate that one of the judges was not swayed.”
Corn-Revere said he hoped the judges will not only agree with Pregerson’s existing ruling, but go a step further.
“I hope they finish what Judge Pregerson started, that this was an unconstitutional ordinance,” he said.
