Vivid Entertainment v. Fielding, No. 13-56445 (9th Cir. 2014)
Annotate this CasePlaintiffs filed suit challenging the enforcement of the County of Los Angeles Safer Sex in the Adult Film Industry Act ("Measure B"), Los Angeles County, Cal. Code tit. 11, div. 1, ch. 11.39, and amending tit. 22, div. 1, ch. 22.56.1925. Measure B imposes a permitting system and additional production obligations on the makers of adult films, such as requiring performers to wear condoms in certain contexts. The court concluded that it need not decide whether Intervenors satisfy the requirements of Article III standing where plaintiffs have standing. Further, the district court did not abuse its discretion in granting preliminary injunctive relief to only certain parts of Measure B, while allowing enforcement of other provisions as severable. The purpose of Measure B is twofold: (1) to decrease the spread of sexually transmitted infections among performers within the adult industry, (2) thereby stemming the transmission of sexually transmitted infections to the general population among whom the performers dwell. The court concluded that the district court properly exercised its discretion in concluding that the condom requirement would likely survive intermediate scrutiny where the restriction of expression in this case is de minimus; the regulation is narrowly tailored to serve the government's interest; and the condom requirement leaves alternative channels of expression available. The portions of Measure B's permitting system left in place by the district court also survives constitutional scrutiny where the requirements that adult film producers complete training about blood-borne pathogens and post a permit during shooting still serve the County's interest in preventing sexually transmitted infections. The district court correctly concluded that the remaining permitting provisions leave little, if any, discretion to government officials. Therefore, the district court did not abuse its discretion in denying a preliminary injunction with respect to the condom and permitting requirement. The court affirmed the judgment.
Court Description: Civil Rights. The panel affirmed the district court’s order denying, in part, plaintiffs’ motion to enjoin the voter-initiated County of Los Angeles Safer Sex in the Adult Film Industry Act (commonly known as Measure B), which imposes a permitting system and additional production obligations on the makers of adult films, including a requirement that performers wear condoms in certain contexts. Plaintiffs alleged that Measure B’s permitting scheme and its condom requirement operate as prior restraints on plaintiffs’ ability to create expression, in the form of adult films, which is protected by the First Amendment. In granting partial preliminary injunctive relief, the district court severed one chapter of Measure B in its entirety and severed portions of three other chapters. Plaintiffs appealed the district court’s decision not to enjoin Measure B in full. The panel held that it had jurisdiction over the appeal whether or not the intervenors-defendants demonstrated Article III standing because plaintiffs had standing, and they alone invoked the federal court’s jurisdiction. The panel held that the district court did not abuse its discretion in holding that the invalid portions of Measure B (allowing for modification, suspension, and revocation of permits; authorizing administrative searches; and allowing discretion in setting fees) were severable. The panel held that the district court did not abuse its discretion in declining to enjoin the enforcement of Measure B’s condom mandate. The panel concluded that the condom mandate survived intermediate scrutiny because it was only a de minimis effect on expression, was narrowly tailored to achieve the substantial governmental interest of reducing the rate of sexually transmitted infections, and left open adequate alternative means of expression. The panel further held that Measure B’s requirements that adult film producers complete training about blood-borne pathogens and post a permit during shooting served the County’s interest in preventing sexually transmitted infections.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.