“Wear a condom, use a green screen” — AHF Attorney Dismisses Constitutional Concerns at Measure B Hearing

AIDS Healthcare Foundation’s ignorance of the realities of adult production– the “industry” it seeks to regulate — is well known, but yesterday in Judge Dean D. Pregerson’s courtroom at the United States District Court in downtown Los Angeles, AHF attorney Samantha Azulay’s ignorance of constitutional law still came as something of a shock.

The one hour and ten minute hearing concerning the motion by plaintiffs Vivid Entertainment, Kayden Kross and Logan Pierce for a Preliminary Injunction against enforcement of the “County of Los Angeles Safer Sex in the Adult Film Industry Act”, otherwise known as Measure B, began on an optimistic note for both adult producers and constitutional scholars: as plaintiffs’ attorney Paul Cambria laid out the argument that Measure B constitutes a presumptively unconstitutional “content based” regulation, Judge Pregerson agreed that the law is “more than likely a content-based statute.”

Counsel for the defendants in this case, the County of Los Angeles and select government employees, did not utter a single word at the hearing. Instead, AHF, as intervenor in the case for the time being, at least “stood in the defendants’ shoes” to defend the constitutionality of the law.

Azulay, who became AHF’s Assistant General Counsel after Brian Chase’s mysterious departure last year, argued that the law regulates conduct, not speech, and applies to everyone across-the-board, despite the fact that the statute on its face addresses only producers of adult content for commercial purposes.

AHF’s counsel further argued that even if sex were required by law to be simulated, this would still not impair the “expression”  or message in adult content, because editing techniques, and digital effects such as green-screening, could be used to simulate condomless sex, or to remove the condoms from the finished film.

Cambria explained that Measure B would prohibit the making of certain types of movies – even though the underlying conduct producers sought to depict is completely legal — and that even if editing or special effects techniques could be used, the law still represents an “invasion into the creative process,” and thus a First Amendment violation. Outside of exceptions such as “fighting words” or obscenity, Cambria said, “government should not dictate the way that people can express protected speech.”

Furthermore, Cambria argued, Measure B Imposes an unconstitutional system of “prior restraint” by preemptively prohibiting the production of adult content if its director, producer and even its financier have not completed blood borne pathogen training, secured a permit (or its producer had a permit suspended or revoked, even if the new production has nothing to do with the suspension/revocation), and/or if the performers do not use condoms, “even if in their sound discretion and artistic judgment they wish to forgo doing so.”

At this point, AHF’s Azulay offered a dumbfounding retort: she argued that LA County’s prior restraint on speech via its requirement for a health permit before one may create adult content was indeed constitutional by way of an analogy, “Suppose I want to redo my garage, which requires a permit?” she said. That remodeling job might be considered her own “artistic expression” as well, she contended.

Cambria also turned the court’s attention to the underinclusiveness of Measure B, noting that producers of mainstream fare were not required to obtain health permits, so the statute was clearly directed solely at the adult industry.

Judge Pregerson queried Cambria, “But what if, say, Paramount or Universal decided to get into the adult movie business; wouldn’t it apply to them as well?”

Cambria replied, that the fact that the judge’s had to use the term “adult movie business” in his hypothetical illustrated that the measure was targeted solely at adult “sexual speech.” Cambria cited 9th Circuit case law, including G.K. Ltd. Travel v. City of Lake Oswego (2006), which holds that, “If a statute describes speech by content, it’s content based.”

On the topic of whether plaintiffs are suffering, or will suffer, irreparable injury, should the Preliminary Injunction not issue, as Mark Kernes noted in his detailed coverage for AVN

Azulay essentially said that she doesn’t see what all the fuss is about, since both CalOSHA regulations and the California Health Code, particularly Section 5193, already mandate that condoms be used in porn production.

Judge Pregerson then asked Azulay if she was aware of any cases where the CalOSHA regulations had been judicially interpreted to mean condomless sex was disallowed in commercial productions.

After hemming and hawing a bit, she admitted that she was not aware of any such case, [only] that she was aware of several investigations regarding whether those regulations had been followed.

Cambria raised the central Fourth Amendment problem with Measure B: the law empowers government inspectors to enter private property without a warrant or probable cause, when they “suspect” that “commercial sexual activity” is taking place, in order to inspect the genitals of consenting adults engaged in legal conduct — and even to seize materials being used in the making of the content.

AHF’s counsel argued that movie sets could be so inspected without violating the Fourth Amendment — even when the set was the private residence of a married couple who were webcamming together — because adult production was “a highly regulated industry”—  and argument which, as Mark Kernes pointed out at AVN, was employed by the government at the recent trial in Philadelphia over the federal recordkeeping and labeling law, 18 U.S.C. 2257.

Azulay then charged that that plaintiffs’ concern about Fourth Amendment privacy rights under Measure B was “hypothetical,”  since no such violations had yet taken place, and that courts don’t strike down laws in response to hypothetical situations.

An audible gasp filled the room, and Judge Pregerson immediately countered, “Yes, we do.”

AHF’s Azulay also mocked the notion that adult production was portable, saying that plaintiffs and other adult producers have “threatened” to move production out of LA County for some time. This was unlikely, she contended, because preferred locations, studios and “green screens” were all located in the Los Angeles area.

Azulay clearly did not comprehend that the whole purpose of green screens (i.e., a wall painted green) is that a producer can shoot the scene ANYWHERE, and drop in a background, be it Los Angeles, Moscow, or the moon, after the fact. Nor was Azulay likely aware that, as she spoke these words, production was wrapping on a Vivid movie in San Francisco.

“Wear a condom, use a green screen,” Azulay summed up, to stunned silence and shaking heads among several attendees familiar with the adult business, which included distinguished co-counsel Louis Sirkin, Vivid Entertainment’s Steven and Marci Hirsch, Free Speech Coalition CEO Diane Duke, industry attorney Allan Gelbard, and others.

Judge Pregerson adjourned the hearing without providing any indication when he might rule on the injunction, although his rulings have been fairly prompt in the past. The matter of AHF’s standing as intervenor in this case, in light of the U.S. Supreme Court’s recent ruling in Hollingsworth v. Perry, is scheduled to be addressed at a hearing next month.

Michael Whiteacre