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Analysis: AHF Files Motion to Dismiss Vivid's Measure B Lawsuit

AVN legal analyst Mark Kernes dissects the legal arguments made in recent AHF filing.

Analysis: AHF Files Motion to Dismiss Vivid's Measure B Lawsuit

LOS ANGELES—Looks like the busy little bees at AIDS Healthcare Foundation (AHF) are taking their intervention in Vivid Entertainment's and others' lawsuit against Measure B seriously. Friday, it filed a motion to dismiss the lawsuit on behalf of Los Angeles County when the county itself seems to have felt no need to file a similar document.

I will address AHF's objections shortly, but first a little history.

AHF's attempts to impose mandatory "barrier protections" (condoms, dental dams, rubber gloves, goggles, face shields) on the filming of adult movies know, the concept has a long history stretching back to 1998, when one HIV-positive performer, Marc Wallice, infected several adult actresses thanks to a forged HIV test. That incident caused several adult production companies to mandate that condoms be used in their sex scenes—but the mandate didn't last. Why? Because consumers stopped buying "condomized" videos in droves, making it clear that they preferred their recorded sexual fantasies condomless.

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That incident also sparked the beginning of the Adult Industry Medical Healthcare Foundation (AIM), and an informal requirement that all performers must be tested for HIV and several other sexually transmitted diseases (STDs) on a monthly basis, and such HIV tests should take the form of a PCR-DNA test, which many infectious disease experts felt was the best "early detection" test available on the market at that time.

The AIM testing regime worked without incident for several years. Then, in 2004, another performer, Darren James, having recently returned from having shot in South America and, while there, apparently having had sex with a local person who was HIV-positive, got an HIV test too soon after his return to the States, and since his infection was in its very early stages at that time—"within the window period" of the test, as it's most commonly described—the test failed to detect his HIV-positive status. He went on to infect a few actresses. Again, several production companies decided to "go condom only," and again, sales plummeted, driving at least one company, Video Team, out of business.

Since that time, and for more than eight years, there have been no HIV transmissions on hetero adult movie/content sets.

With that as background, let us examine AHF's Motion to Dismiss the Vivid complaint. Skipping for a moment over what AHF itself describes as "the most strained inferences" it has drawn from the Complaint, its Motion states, "Plaintiffs’ Complaint almost entirely rests on their contention that Measure B inhibits their ability to freely speak and express themselves. Notably absent from the Complaint, however, are any facts to support this notion that speech or expression are restrained. Nowhere does Measure B, which is attached to the Complaint, contain a restraint of speech-related conduct or otherwise restrict the content of what may be shown in the final adult films Plaintiffs distribute; it merely sets forth workplace safety measures that must be followed prior to and during the actual production of these films, namely to: (1) get a public health permit; (2) obtain health training; (3) post the public health permit on sets; and (4) use condoms for vaginal and anal sex. To be clear, Measure B does not require that condoms or other safety measures appear in the final product or film." [Emphasis in original]

Let's take a moment to sort out the lies, half-truths and (few) truths in the above. As the Motion to Dismiss correctly states, the Plaintiffs do indeed take the position that Measure B is an infringement on their free speech rights, at least insofar as their experience over the past 15 years has been that the porn-viewing public likes their product as it is—that is, largely without condoms—and that attempts to introduce condoms (not to mention dental dams, rubber gloves, goggles or face shields) into those movies have been shown to decrease sales dramatically. That Plaintiffs have not yet provided evidentiary proof of what to any normal person would be simple common sense—that most people's sexual fantasies do not involve condoms, much less all the other paraphernalia that Measure B requires adult performers and producers to employ—is something that would undoubtedly be introduced at trial if Judge Dean D. Pregerson doesn't grant the Plaintiffs' Motion for Summary Judgment.

With that in mind, it's disingenuous for AHF to claim that Measure B contains no "restraint of speech-related conduct," since the very essence of adult movies is to sexually excite the viewer, and sales figures during adult's "condom periods" have shown that a large segment of the viewership does not find condoms in adult scenes exciting.

Also, the adult industry has no problem with a requirement that producers and performers undergo health training in order to recognize situations on adult sets that may be harmful, but in order to get the Measure B-required public health permit, adult producers would be required to use all of the "barrier protections" listed in California Health Code Title 8 section 5193, and that would in turn require that they use all of the rubber goods and shields that viewers don't want to see—hence, it's even more disingenuous for AHF to claim that the only "barrier" Measure B requires is "condoms."

That last sentence above, which AHF itself emphasized, is, of course, a red herring, in that the typical adult movie that runs for 90 minutes contains roughly 60 minutes of sexual activity, and while it's true that Measure B doesn't specifically require that "condoms or other safety measures appear in the final product or film," the fact is that adult movie budgets are generally $20,000 or less, which means that to use (as the Motion implies) special effects to remove condoms from each scene and replace them with a realistic-looking penis would easily increase such budgets ten-fold—and to remove the required "other safety measures" (dental dams, rubber gloves, goggles, face shields and possibly hazmat suits) would be simply impossible. [Emphasis added]

AHF then objects to the fact that because Vivid hasn't yet applied for a county public health permit, and that they haven't yet been penalized for violating such a permit, that they have no standing to bring the case at hand. Surely AHF's attorneys understand the concept of a "facial challenge" to a law: An attempt to prevent initial enforcement of a particular law because if the law were enforced, it would obviously violate the rights of the Plaintiff(s). Surely, the mere fact that Vivid must shoot its sex scenes outside of Los Angeles County in order to avoid being cited by the County Health Department for violation of Measure B is a harm, and moreover, the Court could easily take judicial notice of the fact that producer "Porno Dan" Leal did apply for a public health permit and was later cited by authorities for alleged violation of that permit—so at least someone has already been harmed by the law, and Vivid would have no reason to think a similar series of events would turn out differently for it.

What's particularly laughable is AHF's claim that the main thrust of Measure B—that is, forced barrier protections—are "content-neutral time, place and manner provisions, which are narrowly tailored to advance significant governmental interests, and that leave open ample alternative channels of communication." How anyone could describe requiring actors to wear, at minimum, condoms, rubber gloves and face shields while performing sex as "content-neutral" is beyond laughable; it could even be characterized as an attempt to purposefully mislead the court. Beyond that, the adult industry's lack of a single HIV transmission in eight years of shooting countless hardcore sexual encounters, and its relatively low incidence of other sexually transmitted infections (STIs) compared to other Los Angeles residents of a similar age group, show that Measure B hardly "advance[s] significant governmental interests." Not only is the adult performer community relatively self-contained, it also is much more frequently tested—thereby arguably posing less risk to the general population than groups with similar demographics.

Finally, those "ample alternative channels of communication" to which the Motion refers, which would allow "Plaintiffs to communicate their message by allowing Plaintiffs to show whatever content these [sic] please in the final product," are undoubtedly those "special effects" that would magically remove all of the required barrier gear that Measure B requires performers to wear. Somehow, we suspect that adult video fans would balk at having to spend upwards of $100 to own the latest "barriers magically removed" XXX release.

But the AHF motion cares nothing about that expense. Later, AHF argues that "Alternative modes of communication need only be 'ample,' not equivalent or as subjectively desirable. Since Plaintiffs have ample ways to express themselves, Measure B is a valid time, place and manner restriction." Hey, what do they care how much viewers have to pay for porn? After all, it's not as if attendance at mainstream movies drops off every time theaters raise their prices! (Oops...) [Citation removed]

The Motion also claims that "the facts alleged in the Complaint do not lend any support to Plaintiffs’ contentions that Measure B ... allows County officials to exercise unbridled discretion in making decisions." The fact is, in citing Section 5193, Measure B requires all of the barrier protections mentioned above, and as the United States Supreme Court noted in U.S. v. Stevens, the 2010 dog-fight video case (and a "facial challenge" in its own right), "Not to worry, the Government says: The Executive Branch construes §48 [which criminalized dog-fight videos] to reach only 'extreme' cruelty, and it 'neither has brought nor will bring a prosecution for anything less,' Chief Justice John Roberts wrote. "The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly." [Some emphasis added]

It is simply incredible, as AHF argues in its Motion, that "Plaintiffs fail to point to any part of Measure B that gives County officials discretion to grant a permit, or penalize an adult film producer by content. To the contrary, Measure B’s permitting scheme contains four specific requirements to get and keep a permit—pay for a permit, conduct blood borne pathogen training, post  the permit on the work site, and use condoms during vaginal and anal sex."

But considering that the text of Measure B was attached to the Plaintiffs' complaint makes it clear just how government officials have that discretion. What AHF is asking the Court here to do is to ignore the fact that Measure B requires that all of the barrier protections in Section 5193 be used, and trust the County Health Department only to require that condoms be used—though again, AHF fails to specify just what the "other safety measures" that they admit Measure B requires, that they're trying to convince the Court that the County wouldn't enforce.

The Motion to Dismiss then gets into specifics of the above-noted arguments. After reiterating their claim that the Plaintiffs must have suffered an "injury in fact"—a standard not applicable to a facial challenge to a statute—AHF seriously makes the argument that since state law already requires adult filmmakers to use the very barrier protections referenced in Measure B, that the Plaintiffs' free speech rights aren't violated by Measure B. This, of course, ignores the 18 months' worth of AHF-inspired hearings conducted by the California Division of Occupational Safety and Health (CalOSHA) regarding AHF's petition that a specific condom requirement be added to the California Health Code—and the fact that in the roughly 18 months since those hearings concluded, the CalOSHA committee has yet to make a recommendation to its Standards Board as to whether that petition should be granted. (And of course, just because one law may contain unconstitutional provisions doesn't mean that a Plaintiff can't challenge another law that contains equally—or the same—unconstitutional provisions.)

Reiterating their claim that the "barrier protections" don't have to appear in the final product—and since the Motion doesn't address how such barriers are to be removed from the final product, we might as well assume that they think some form of magic will be employed—the Motion argues, "Measure B is no different than any of the other numerous safety regulations required in the making of any type of film—such as safety regulations for stunts and special effects, fire codes, wage and hour laws, and child labor laws. For example, filmmakers may not kill actors to express the idea that someone dies in the film, or blow up buildings to show that this authentically occurred. Measure B, like these rules regulating film production, does not regulate how the final cut must appear, but rather concerns only the safety on the film set and the well-being of the people both on and off the set." If that's not saying that condoms, gloves and face shields can be removed by "Hollywood magic"—i.e., special effects—we don't know what is—or just how much that will cost.

Of course, it's for that very reason that AHF claims that Measure B is content-neutral: If producers can supposedly "green screen" out the barrier protections, porn acting is no different from any other kind of acting. Hell, why don't they just animate the whole thing and send all the actors home!

But the Motion goes on for several pages about why Measure B is just another "secondary effects" restriction, ignoring the fact that when a "secondary effects" ordinance is applied to an adult business, it usually resolves in that business closing down and moving elsewhere—if it can even do so! Applying a "secondary effects" doctrine to adult movie production will result in no movies being produced—unless they're done so out of the jurisdiction of the ordinance ... like, say, Nevada.

What some might consider particularly galling is this contention by AHF: "Plaintiffs do not allege that Measure B describes any type of content that it seeks to prohibit, nor can they. It does not distinguish favored speech from disfavored speech based on the ideas or views expressed, or describe types of content in Plaintiffs’ products that should be restricted. Plaintiffs offer no allegations suggesting that Measure B was enacted, or their business was targeted specifically, because of a desire to stifle certain viewpoints. Measure B merely sets forth safety regulations that must be followed during the making of films, and is silent regarding the idea or view expressed in the final cut."

How anyone could miss the concept that for some viewers at least, watching a sex scene where actors are wearing condoms, rubber gloves, goggles and face shields, versus a similar scene where such apparatus is not present, are two distinctly different messages is beyond us—or is AHF simply trying to mislead the Court?

Moreover, as Paul Cambria, one of Vivid's attorneys, has noted, "For example, let's assume that my movie theme is, a husband and wife are trying to conceive a child, and they can't," he continued. "So the wife decides that she's going to have sex with all the members of her husband's bowling team without him knowing, and hoping that one of them will make her pregnant, and he'll think it's his and be thrilled and they'll be happy ever after. Or you're going to do a Pirates of the Caribbean type movie and all the action is set in the year 1730 and somebody whips out a latex condom. Obviously, the creative process is now interfered with by the government, and it just gets geometric if you're talking about goggles and all the rest."

Hence, the Motion's claim that requiring "barrier protection" is not an "unlawful prior restraint" on speech is simply outrageous. How could it be anything else—unless one accepts the idea that removing them digitally is in any way economically feasible!

Perhaps of interest is AHF's claim that "In determining whether an ordinance furthers governmental interests, however, courts grant deference to the judgment of the legislative body charged with the responsibility of making determinations whether the government's ends are advanced by a regulation." But of course, no "legislative body" created or passed Measure B. It was created by a ballot initiative written and sponsored by AHF, and enacted into law by a citizen vote that had nothing to do with any actions by the LA County Board of Supervisors. (And it can't hurt to note that if the citizens who voted for Measure B had known what it was really all about—not just "condoms" but all the other "barrier protections" required by Section 5193—there's a likelihood that many would not have voted for it.)

One last point: AHF claims that Measure B is not unconstitutionally vague, and in one sense they're right. The Measure makes it very clear that in order for an adult producer to keep its county health permit, it has to follow, among other laws, Section 5193 of the Health Code, and as AVN has previously noted, Section 5193 makes very clear what "barrier protections" need to be employed in shooting a hardcore sex scene.

What is unconstitutionally vague, however, is Measure B's requirement (as interpreted by film permitting agency FilmLA) that even women who do solo masturbation scenes on webcams are required to get such a health permit even though they have no sexual partner while on camera. Beyond that, there are several married or committed couples acting in adult movies, and the idea that they should be required to use all of the required "barrier protections" is absurd: They don't have sex outside their relationship, so they cannot possibly infect the general populace with an STD.

There are a few other points that could be discussed in the Motion to Dismiss, such as whether Measure B violates the Plaintiffs' due process rights with its power to revoke a health permit at any time without seeking prior court approval, and whether Measure B preempts CalOSHA's own regulatory system, but the law's main problems are those set forth above.

The adult industry anxiously awaits Plaintiffs' response to the above Motion... and to the hearing on the matter which is currently scheduled for July 1. Check back with AVN.com for further news regarding this important threat to the adult industry.






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