Ninth Circuit Panel Upholds Measure B—At Least Until Trial

SAN FRANCISCO—In an opinion that appears to stand the whole concept of legal "standing" on its head, the U.S. Court of Appeals for the Ninth Circuit has upheld the portions of Los Angeles County's Measure B which were not struck down by U.S. District Court Judge Dean D. Pregerson. The remaining portions of Measure B which were upheld mandate (among other things) that condoms (and other barrier protections) must be used "during any acts of vaginal or anal sexual intercourse." After acknowledging that "The Supreme Court has held that a party must have Article III standing both to initiate an action and to seek review on appeal," the Ninth Circuit claims that it nonetheless has jurisdiction over the case because the plaintiffs—Vivid Entertainment, Kayden Kross and Logan Pierce—"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," the opinion continues. "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." The proper term for such a ruling is "Catch 22," from Joseph Heller's novel of the same name. In making its decision, the Ninth Circuit is saying that despite the fact that Judge Pregerson unconstitutionally permitted AIDS Healthcare Foundation (AHF) to intervene in the case, it is unable to consider that issue until after a trial has taken place and Judge Pregerson issues his decision on the matter—but that ignores the fact that since Los Angeles County has steadfastly refused to take part in the lawsuit, no such trial would take place were it not for the unconstitutional actions of the judge in allowing AHF to intervene, to file motions and argue them in his court! The Ninth Circuit ruling also sets the stage for yet another motion which the Plaintiffs could file, which would move to preclude AHF attorneys from taking part in the trial since, under the U.S. Supreme Court's opinion in Hollingsworth v. Perry, they had no standing to intervene in the first place. That issue aside, however, the Ninth Circuit has upheld Judge Pregerson's severance of certain facets of Measure B, most notably its requirement that L.A. County be permitted to set its own fee schedule for the "services" it would be providing in inspection adult film sets and issuing the require public health permits to adult producers. It also upheld the court's denial of the county's ability under the measure to conduct warrantless searches by county health officers of adult producers' studios and locations, as well as the county's ability to suspend and/or revoke the health permits based on criteria stated in Measure B. Plaintiffs had argued that the district court's striking of certain individual words and phrases from Measure B, such as the word "oral" from the measure's requirement that "oral, vaginal, or anal penetration" by adult actors required condom use, was improper, but the Ninth Circuit ruled that as long as the law still made grammatical sense and still functioned with something like its original intent, the excision of those certain words and phrases was not an abuse of discretion that the Ninth Circuit should second-guess the trial court on. "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," the panel ruled. It also opined that even with the excisions made by Judge Pregerson, county voters would still have approved the law in its abridged form. Most galling, however, is the Ninth Circuit's position that "The condom mandate ... has only a de minimis [negligible] effect on expression," ignoring the fact that historically, every company that has adopted a mandatory condom policy has experienced a drop in sales, which translates to a decreased ability to have its message seen by the public. The court also found that possible sexually transmitted infections are a "secondary effect" of making adult movies and Web content, and that under the U.S. Supreme Court's standards as set forth in City of Los Angeles v. Alameda Books, it is a valid exercise of state power to reduce the "secondary effects" by requiring condoms (though, of course, Measure B mandates far more than condoms). The Ninth Circuit used both of those positions to rule that Measure B not be subjected to the "strict scrutiny" that Plaintiffs had claimed consideration of the law required, but instead ruled that "intermediate scrutiny," a lower standard, was the level properly applied to Measure B. But beyond "secondary effects," the Ninth Circuit upheld the "condom requirement" by reaching back to the 2000 U.S. Supreme Court decision in City of Erie v. Pap's AM, noting that in that decision, the high court found that requiring exotic dancers to wear g-strings and pasties did not impact the expressive message they were trying to convey through their dance, not to mention the Ninth Circuit's own decision in Gammoh v. City of LaHabra, which required dancers to stay at least two feet away from patrons during their performances. "In light of those cases, we must examine more carefully whether Plaintiffs' relevant expression is the depiction of condomless sex," the Ninth Circuit ruled. "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.' "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.' 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 relevant expression for First Amendment purposes; instead, the relevant expression is more generally the adult films' erotic message." [Citations and internal quote marks removed] In other words, suck up the condoms; viewers will still get off. But this view of the function of condoms in erotic messaging also allows the Ninth Circuit to claim that Measure B doesn't ban "relevant expression," and that the condoms' overall effect on the message is de minimus: "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." As regards the health concerns supposedly addressed by Measure B, the Ninth Circuit panel rejects the fact that the adult industry's testing regimen can be nearly if not as effective as a condom mandate. After a recitation of how and at what frequency the industry tests performers, and noting that "industry officials" have testified that the testing system is effective, the panel gave equal if not more credence to the position taken by the county's Department of Public Health in a 2009 letter 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%." It also accepted the county's claim that "20.2% of performers in adult films diagnosed with an infection were reinfected within one year." It apparently gave no weight to the findings of Johns Hopkins epidemiologist Dr. Lawrence S. Mayer, who found that the county's assessment of the county's STI rate is fatally flawed. Finally, the appeals court rejected the argument that Measure B would be ineffective in any case because condomless (and barrierless) production could easily take place outside of L.A. County. The court said that Plaintiffs had undermined their own argument by 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." The final section of the Ninth Circuit's opinion deals with the new permitting requirement for adult productions, and rejects the industry's contention that such permitting is "content-based and therefore unconstitutional," stating that such permitting, or "licensing," is not unconstitutional simply because it is content-based—and they use that finding to further argue that Measure B is sufficiently "narrowly tailored" to pass the "intermediate scrutiny" test. The text of the Ninth Circuit's decision, which can be found here, bodes poorly for the adult industry's ability to continue to shoot in Los Angeles County, despite the fact that the issue hasn't even been brought to trial yet. Adult industry attorneys and Free Speech Coalition's Diane Duke are currently analyzing the decision, and a statement from one or more of the parties is expected later today.