A unanimous three-judge panel of the U.S. 9th Circuit Court of Appeals has rejected a constitutional challenge to a voter-initiated ordinance that compels producers of adult films to require their actors to use condoms during scenes of anal or vaginal intercourse while filming in Los Angeles County. The December 15 ruling affirmed a decision by District Judge Dean D. Pregerson, who actually struck out parts of the ordinance before denying a pretrial motion by film industry plaintiffs to enjoin its operation pending a final ruling on the merits. The case is Vivid Entertainment v. Fielding, 2014 U.S. App. LEXIS 23560 (9th Cir., Dec. 15, 2015).
It was Judge Pregerson’s denial of the injunction that the plaintiffs appealed, while proponents of the ordinance objected to his striking out of various portions.
Los Angeles County voters approved the ordinance in November 2012, and it went into effect on December 12 of that year. As originally enacted, it also required the use of condoms during oral sex scenes. The ordinance required producers of “adult films” to pay a registration for a permit to film, conditioned on proof that specified employees have completed a county-approved training program about blood-borne pathogens, and to comply with various other requirements, including the use of condoms during filming. Surprise inspections during filming were authorized, and the measure also provided for suspension of permits and shutting down filming if producers were not in compliance.
Judge Pregerson agreed to block enforcement of the portions he specified — such as the requirement that condoms be used during oral sex scenes — and narrowed the definition of “adult films” to be limited to those in which a penis penetrating a vagina or an anus were being filmed. He also struck out the requirement that producers pay a fee to get the permit, and limited enforcement powers to some extent. The judge’s editing accorded with a severability provision in the ordinance.
The judge had allowed the proponents of the ordinance to intervene in the lawsuit, and they objected to the revisions. The film industry plaintiffs objected to any portion of the ordinance being allowed to go into effect. The county government did not appeal the ruling.
The plaintiffs contended that their First Amendment rights to freedom of expression were being unconstitutionally abridged by the ordinance, contending that it was a content-based regulation of speech that was not supported by a compelling state interest. The district court, and the court of appeals, concluded that although regulation of the adult entertainment industry is generally a content oriented regulation of speech, the regulation of sexually-oriented speech is subject only to heightened scrutiny, not strict scrutiny, when the “primary motivation” for the regulation is to “prevent secondary effects.” The court concluded that this was the appropriate test in this case.
The purpose of the ordinance, said the court, was to prevent sexually-transmitted diseases, particularly HIV, during the production of adult films, and responded to some news reports about HIV infection among adult film actors. Thus, the voters were not trying to interfere with the erotic “message” of the film-makers, but rather to protect the performers.
The plaintiffs had argued that “the condom mandate amounts to a complete ban on their protected expression,” but the court disagreed. Wrote Judge Susan P. Graber for the panel, “Plaintiffs’ argument presupposes that their relevant expression for First Amendment purposes is the depiction of condomless sex.” In support of this argument, the Plaintiffs contended “that condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease,” so that “films depicting condomless sex convey a particular message about sex in a world without those risks.” The court found, however, 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.”
Alternatively, the court suggested that if it were found that “special effects could be used to edit condoms out of adult films, that would provide yet another reason to apply intermediate scrutiny” instead of strict scrutiny in evaluating the plaintiffs’ First Amendment claim, since it would provide an alternative way for the film makers to convey an erotic message about condomless sex.
The court found that the measure survived intermediate scrutiny because it constituted a “de minimis” restriction on speech, imposed for a legitimate governmental purpose. “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,” wrote Judge Graber, “but that effect is certainly no greater than the effect of pasties and G-strings on the erotic message of nude dancing,” alluding to restrictions on nude dancing in public venues that have been upheld against similar constitutional challenges by the Supreme Court.
Although the plaintiffs accepted the contention by supporters of the ordinance that the government had a legitimate interest in preventing the spread of sexually-transmitted diseases, they argued that the ordinance was not sufficiently “narrowly tailored” to achieve this. The main argument was that a regime of testing actors was sufficient to avoid transmission, and that a broad condom mandate went further than necessary to achieve the government’s legitimate objectives. They pointed out that the industry has voluntarily adopted a testing regimen, including a requirement that actors present a certificate of a recent negative test for various STDs before filming can commence.
The district court received evidence, however, that the rate of sexually-transmitted disease among adult actors in L.A. County was larger by a statistically significant amount than the transmission rate among the general public, tending to counter the plaintiffs’ arguments that their voluntary efforts were effective. The court of appeals found that the district court’s decision that the evidence showed the plaintiffs were unlikely to succeed on the merits of their constitutional claim was not an abuse of discretion by the district judge. That is the standard for reviewing a district court’s grant or denial of injunctive relief before a full trial on the merits.
The court of appeals also found that the remaining portions of the ordinance’s enforcement provisions, including the licensing requirement, with its educational component, were clearly focused on the legitimate public health interests behind the ordinance. By striking out the provision allowing for the government to suspend or revoke licenses without any hearing process, the district judge had left “little, if any, discretion to government officials,” and, once again, the court found the court had not abused its discretion by refusing to enjoin the remaining provisions.
Thus, the court concluded, Judge Pregerson did not abuse his discretion by holding that the invalid portions of the ordinance were severable from the remainder, or by denying a preliminary injunction against the condom and permitting requirements.
When it comes to the issue of HIV, the district court’s ruling in this case predated recent developments concerning new treatments that sharply reduce the likelihood of HIV transmission through condomless sex. However, the ordinance is broadly-written to embrace all sexually-transmitted pathogens, not just HIV, so it is uncertain that this new evidence would produce a significantly different result when the district court conducts a trial on the merits.