Vivid Appeals Denial of TRO With 9th Circuit

Sep 17, 2013
Kayden Kross
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LOS ANGELES — Vivid Entertainment yesterday filed an appeal over U.S. District Judge Dean Pregerson’s denial of a temporary restraining order in the studio’s suit against enforcement of Measure B, which requires the use of condoms in the production of adult movies in Los Angeles County.

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Vivid, along with co-plaintiffs Kayden Kross and Logan Pierce, filed their appeal with the 9th U.S. Circuit Court of Appeals, presenting three questions for an appeals court panel to weigh:

  • Whether the district court erred by substantially editing definitions and substantive provisions to preserve portions of  Measure B, which had been passed as a ballot initiative to target adult films, after the court preliminarily enjoined most of the ordinance as a prior restraint?
  • Whether the district court erred in refusing to preliminarily enjoin Measure B in full based on evidence submitted by the AIDS Healthcare Foundation (named as Intervenors in the suit) “who lack Article III standing but were allowed to remain as parties below even after the U.S. Supreme Court’s decision in Hollingsworth vs. Perry?”
  • Whether the district court erred in refusing to preliminarily restrain Measure B in full after finding that the adult film productions at issue are protected by the First Amendment and that Measure B imposes a prior restraint?

Vivid attorneys said in court documents that Pregerson erred by failing to preliminarily enjoin Measure B in its entirety.

“The court held that Measure B regulates activity protected by the First Amendment and that appellants are likely to succeed on claims that it imposes a  prior restraint, vests county officials with excessive discretion, creates unconstitutional search authority, and imposes unconstitutional permit fees. Yet it nevertheless declined to enjoin a remaining portion of the law — but only after rewriting both its definitions and intended scope,” Vivid attorneys wrote.

“Such judicial lawmaking is not the proper  domain of a district court. These errors were compounded by allowing [the AHF] to become parties to the case, and to remain so even after the [U.S.] Supreme Court overruled circuit authority relied upon, and were exacerbated by reliance on AHF’s arguments to support partial denial of preliminary injunctive relief.

“After finding most of Measure B constitutionally suspect, the district court should have enjoined its operation pending a final ruling on the merits. The irreparable injury that the court found supported enjoining Measure B’s principal provisions will still result from operation of the portions that the court rewrote to preserve. The balance of equities and public interest thus fall in appellants’ favor, and Measure B’s condom-use mandate and remaining permit requirements must be preliminarily enjoined.”

In a separate filing yesterday, Vivid attorneys asked the 9th Circuit to take judicial notice of a letter issued in December by Los Angeles County Public Health Director Jonathan   Fielding directed to adult film producers, as well as a report issued by Fielding’s office called “Los Angeles County Five-Year Comprehensive HIV Plan (2013-2017).”

Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted.

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Michael Whiteacre
Michael Whiteacre
7 years ago

Let me expand upon something that this article references in passing: “In a separate filing yesterday, Vivid attorneys asked the 9th Circuit to take judicial notice of … a report issued by Fielding’s office called “Los Angeles County Five-Year Comprehensive HIV Plan (2013-2017).” As Mark Kernes notes in his coverage for AVN, the County’s Five-Year Plan “‘does not seek any measures such as those mandated by Measure B, but rather appears to have as its goal more testing and screening of the general population, i.e., exactly what the adult film industry already does for performers,’ adding, ‘It is against this… Read more »

Michael Whiteacre
Michael Whiteacre
7 years ago

Also in Vivid’s brief, “Putative Intervenors AHF et al. have a demonstrated animosity toward the adult film industry. For example, a staff member [Mark Roy ‘Wolverine’ McGrath] instrumental in drafting Measure B has made public statements that he would like to see adult filmmakers driven out of California. This AHF staffer also ‘considers the adult industry “quasi-human trafficking,”‘ and has stated that ‘I don’t give a shit about their jobs,’ while questioning whether ‘these [are] the types of jobs we need in California.'”

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[…] Vivid Entertainment’s appeal will be heard on Monday, March 3 at 9:30 a.m.; Isaacs’ appeal will be heard Wednesday, March 5 at 9 a.m. Both cases will be heard at the 9th Circuit’s courthouse in Pasadena, Calif. […]

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