Supporters of Vote Yes on B in Los Angeles, the condoms in porn measure on the November ballot led by AIDS Healthcare Foundation, hand out voter information and free condoms on L.A's famed Sunset Strip.
Supporters of Vote Yes on B in Los Angeles, the condoms in porn measure on the November ballot led by AIDS Healthcare Foundation, hand out voter information and free condoms on L.A’s famed Sunset Strip. (Photo: Joe Kohen / AP Images for AIDS Healthcare Foundation)

At first blush, a case now before the U.S. Court of Appeals for the Ninth Circuit appears downright raunchy, brought by a Los Angeles studio whose films have titles like “Bedside Brat,” and “Sex in Dangerous Places.”

But the appeal, by Vivid Entertain­ment LLC, raises an intriguing constitutional issue: How far does the First Amendment go in protecting the free-speech rights of actors who have sex with each other in movies?

“It is usually unpopular speech, or speech that people will try to denigrate as not being so important, where some of the more critical First Amendment battles are fought,” said Robert Corn-Revere, a partner in the Washington office of Seattle’s Davis Wright Tremaine who represents Vivid and another production company as well as two porn actors in the case. “Because they really do come down to the importance of the principles involved.”

The case also raises standing issues under the U.S. Supreme Court’s Hollingsworth v. Perry decision last year — the ruling on California’s ban on same sex marriage.

In 2012, voters in Los Angeles County passed the Safer Sex in the Adult Film Industry Act, or Measure B, which imposes numerous requirements on the porn industry, notably that performers wear condoms during production. The law was designed to prevent the spread of sexually transmitted diseases including AIDS, which proponents argued are more prevalent among adult film actors. The porn industry has aggressively fought the law, citing its own health screenings of performers and the burden such a requirement would put on free speech.

“One of the things that adult films do is convey a sense of fantasy and sexual freedom,” said Corn-Revere, who also represented CBS Corp. in challenging regulatory fines assessed over its broadcast of Janet Jackson’s breast during the 2004 Super Bowl halftime show. “Requiring condoms then disrupts even that message of the film, or entertainment value of the film.”

On Aug. 16, U.S. District Judge Dean Pregerson in Los Angeles refused to dismiss most of the case and agreed that portions of the law were overbroad, constituting a “prior restraint” on speech. For instance, he cited Measure B’s original definition of adult films, which included those depicting oral and penetrative sex, as too broad in scope. Instead, he cited the condom mandate in limiting application of the law to vaginal and anal sexual intercourse. But after severing the language he deemed objectionable, Pregerson declined to halt the law’s enforcement. He concluded that the porn producers were unlikely to prevail in challenging the condom requirement under the First Amendment. The alternative they offered — continuing to conduct regular health screenings — hadn’t proven effective in preventing sexually transmitted diseases, he wrote.

Los Angeles County has refused to defend the case, so the proponents of the ballot measure, primarily the AIDS Healthcare Foundation, have been allowed to intervene. But on June 26, the Supreme Court ruled in Hollingsworth that the sponsors of Proposition 8, the ballot initiative banning same-sex marriage in California, lacked standing to appeal the case after the state’s attorney general refused to do so. Still, even after Hollingsworth, Pregerson continued to allow Measure B’s proponents to defend the case.

“The language of Hollingsworth was really quite expansive — saying the proponents of a ballot measure really have no more interest in the measure enacted than any member of the public,” Corn-Revere said.

Measure B’s proponents have countered on appeal that they should be allowed to continue to defend the law because, unlike the sponsors of Propo­sition 8, they aren’t the ones challenging a lower court decision.

In March 3 oral arguments, the panel asked no questions about Hollingsworth. In fact, the arguments were surprisingly dry, although Chief Judge Alex Kozinski made a passing reference to the frequent presence of film trucks along the posh residential street where the Pasadena courthouse is located — although “not for this kind of film,” he added.

Kozinski instead raised numerous questions about how effective such a law would be, especially since adult film producers could move to the next county. And he questioned whether Pregerson had the authority to sever portions of the law. The producers have argued that Pregerson impermissibly rewrote the law to preserve its constitutionality.

INTENT OF THE LAW

Thomas Freeman, a principal at Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg in Los Angeles who represents the measure’s proponents, defended Pregerson’s severance actions, ­noting that the law’s primary intent was to require the use of condoms in adult films.

“While Measure B requires performers to wear condoms, it does not require filmmakers to depict the use of condoms,” he wrote in his appeal.

Freeman declined to comment.

Kozinski, a frequent First Amendment defender, has heard porn cases before. In 2008, sitting as a trial judge, he recused himself in the middle of a criminal trial against Ira Isaacs after revelations emerged about sexually explicit jokes posted on the judge’s private Web site. A federal judicial panel ultimately admonished Kozinski.

The underlying case against Isaacs, who was charged with violating federal obscenity laws by making films depicting bestiality and scatology, ended in a mistrial. A second attempt to prosecute ended in another mistrial when jurors deadlocked. Then, in 2012, a jury in Los Angeles convicted Isaacs, who was sentenced to four years in federal prison.

Isaacs argued on appeal that U.S. District Judge George King in Los Angeles erred by not allowing him to testify as his own expert about the artistic value of his works. Kozinski had allowed him to do so in the first trial.

“Technically, there is case authority that when a judge is recused, every ruling he’s made is wiped out and you have to start from scratch,” said an attorney for Isaacs, Roger Jon Diamond, a solo practitioner in Santa Monica, Calif. “Still, the question is whether or not his opinion should be given some weight or consideration as opposed to being thrown out completely.”

In an unpublished opinion on March 25, a separate Ninth Circuit panel disagreed, finding that Isaacs failed to prove why his testimony would have been helpful. Diamond said he wasn’t sure whether his client would seek a rehearing from an en banc panel.

Contact Amanda Bronstad at abronstad@alm.com.