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• While the content of Mr. Gelbard's letter to the City Attorney is not known, perhaps a review of his statement to the May 11th Condom Law Working Group tasked with coming up with an enforcement mechanism for the AHF-written City of Los Angeles "Safer Sex" ordinance will provide some insight:

  My name is Allan Gelbard. I am a First Amendment and Intellectual Property lawyer. I represent a significant number of adult entertainment industry members including some of the industry's most famous companies, directors, producers and performers. All of them are opposed to the mandatory condom policy. Without exception, they all believe—and have first-hand knowledge—that this policy makes them less, not more safe.

  I am also a constituent of Councilman Zine, a taxpayer and a native of this beautiful city, and I object to the waste of my personal tax dollars being spent on passing and even attempting to enforce a clearly unconstitutional law.

  I am here to make one point very clear: this ordinance is unconstitutional. Your City Attorney has already acknowledged that the statute is "patently illegal" and has asserted in court filings that the statute is unconstitutional on preemption grounds.

  I am here today to address the First Amendment implications that you may have failed to consider.

  First, let me say I was appalled when I read an account from your last hearing on this matter, that a City Attorney, [Kimberly] Miera, represented to this body that pornography is not protected by the First Amendment.

  That is patently a false statement. Whether she inadvertently misspoke, or knowingly employed a tactic of social conservative ideologues that intentionally conflate the words pornography and obscenity, this body's understanding of the matter, and the financial risk to this city of making such a mistake, is crucial.

  Since 1965, when the US Supreme Court decided Freedman v. Maryland (380 U.S. 51), it has been beyond dispute that "government restrictions on the content of expressive activity" (such as filming a movie) are subject to review under the First Amendment.

  In 1973, the US Supreme Court decided Miller v California (413 US 15) which defined what is and what is not obscene, and distinguished obscenity from non-obscene pornography which is clearly expression protected by the First Amendment "regardless of whether the government or a majority of the people approve of the ideas these works represent."

  In 1988, the California Supreme Court held, in People v Freeman (46 Cal 3rd 419, 425), "a non-obscene motion picture is protected by the guarantee of free expression found in the First Amendment." In so doing, it held that attempting to use the pandering and prostitution laws against the makers of non-obscene adult entertainment was an attempt at "an end run around the First Amendment."

  What does your ordinance actually do? It requires performers in adult productions to employ barrier protection which will, obviously, affect their performances, the messages they intent to convey, and be visible in the movies.

  This is clearly a content-based restriction on speech, and such restrictions require the government to prove their law satisfies strict scrutiny, which this one cannot.

  This ordinance compels the speaker to include safe sex practices in their film, which, while perhaps a laudable goal, and which may be the actual political goal of the main proponent of the statute, nevertheless constitutes compelled speech. Such governmental acts violate the rights of freedom of expression, both of the producers of the films, and the actors who appear in them.

  In the 1988 case of Riley v National Federation of the Blind of North Carolina (487 US 781, 790-91), the US Supreme Court stated, "The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it."

  In 2000 in Garawan Farming v. Lyons (24 Cal.4th 468), the California Supreme Court stated that the First Amendment fully protects "idealogical speech" which it defined as including "philosophical," "social," "artistic," "literary," "ethical," and similar matters..." Justice Mosk continued, "The right in question is put at risk both by prohibiting a speaker from saying what he otherwise would say and also by compelling him to say what he otherwise would not say."

  Forcing adult production companies to require their performers to use condoms violates the rights of all the participants who wish to convey a different message. All the rhetoric aside, this is undeniable.

  I understand the City was, in all likelihood, attempting to save the costs of placing the matter on the ballot, and then being sued. But by passing this ordinance, and now proposing to actually enforce it, you are simply jumping ahead to the "getting sued" part. As I'm sure you all know, 42 USC 1983 provides for private causes of action in Federal Court to remedy constitutional violations and 42 USC 1988 shifts the attorney's fees incurred by such actions to prevailing plaintiffs.

  In 1994, in Turner Broad. Sys. v. FCC (512 U.S. 622, 641-42), Justice Kennedy writing for the Court said, "At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right."

  Each of you took an oath to obey the Constitution. I urge you not to make me, or someone else like me, compel you do it, and to waste our tax dollars—so desperately needed elsewhere—on such an easily avoidable lesson.