Vivid Entertainment v. Jonathan Fielding
2014 U.S. App. LEXIS 23560
| 9th Cir. | 2014Background
- Measure B (Los Angeles County Safer Sex in the Adult Film Industry Act, 2012) requires adult-film producers to obtain public-health permits, post permits on set, have employees complete county-approved training on blood-borne pathogens, and mandate condom use for vaginal/anal intercourse; it also provided for fees, administrative inspections, and permit suspension/revocation.
- Plaintiffs (adult-film companies and performers) sued for declaratory and injunctive relief under the First Amendment, arguing Measure B functions as a prior restraint and unlawfully burdens protected expression.
- Los Angeles County declined to defend Measure B; official proponents intervened to defend the ordinance; the district court allowed intervention over Plaintiffs’ objection.
- The district court granted a preliminary injunction against certain provisions (fee-setting discretion, warrantless administrative searches, and expansive permit modification/suspension/revocation procedures) but denied an injunction as to the condom mandate and the remaining permitting requirements.
- Plaintiffs appealed the partial denial; the Ninth Circuit reviewed jurisdictional and severability issues and the denial of preliminary injunctive relief for the condom and permitting provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing of intervenors / jurisdiction | Intervenors lack standing under Hollingsworth, so appeal lacks jurisdiction | Plaintiffs invoked federal jurisdiction; intervenors need not have standing to defend | Court: Jurisdiction exists; intervenors’ standing not required for appeal because Plaintiffs invoked the court’s power |
| Severability of partially-enjoined ordinance | Because some provisions are likely invalid, the whole Measure B must be enjoined (not severable) | Measure B contains a broad severability clause; invalid parts are grammatically, functionally, and volitionally separable | Court: Measure B is presumptively severable under California law; district court did not abuse discretion in severing only certain provisions |
| First Amendment standard for condom mandate | Condom mandate is content-based and effectively a complete ban on protected expression; strict scrutiny applies | Measure B targets secondary effects (STI prevention); under Alameda Books intermediate scrutiny applies; mandate is not a total ban | Court: Defined relevant expression as the films’ erotic message (not depiction of condomless sex); restriction is de minimis; intermediate scrutiny applies |
| Constitutionality of condom mandate and permitting requirements | Mandate/permitting not narrowly tailored; duplicative or ineffective given industry testing and mobility; irreparable harm asserted | County has substantial interest in reducing STIs; mandate narrowly tailored and leaves alternative channels; permitting requirements serve health interest | Court: Condom mandate likely survives intermediate scrutiny (substantial interest, narrow tailoring, alternatives remain); remaining permitting requirements also withstand constitutional challenge; district court did not abuse discretion in denying injunction for those provisions |
Key Cases Cited
- Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (standing of proponents to appeal ballot initiative decisions)
- United States v. Nat’l Treasury Emps. Union, 513 U.S. 454 (1995) (separation-of-powers caution against judicial legislation)
- Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) (severability and preserving valid statute parts)
- City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) (local ordinance severability is state-law question)
- Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (standing required to invoke federal court power)
- City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (regulation of adult entertainment may be analyzed under secondary-effects doctrine)
- Pap’s A.M. v. City of Erie, 529 U.S. 277 (2000) (minimal restrictions on erotic expression may be upheld; de minimis effect)
- Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005) (applying Alameda Books and upholding limited restrictions on adult-entertainment expression)
- Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) (preliminary injunction factors)
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (permit schemes regulating speech must be narrowly tailored)