Page 48 - AVN August 2013

MEASURE B | By Mark Kernes
Judge Hears Arguments in Measure B Suit Both sides await his ruling on temporary restraining order
LEGAL NEWS
It was somewhat strange sitting in Courtroom 3 of the
U.S. Federal Courthouse in downtown Los Angeles on
July 11, witnessing Judge Dean D. Pregerson hear
arguments as to whether plaintiffs should be issued a
temporary restraining order (TRO) to prevent the require-
ments of Measure B—the so-called “condoms in porn”
law—from taking effect. Strange because one side of that
argument was being presented by AIDS Healthcare
Foundation (AHF) attorney Samantha Azulay, when a
U.S. Supreme Court ruling in Hollingsworth v. Perry the
week before had made it crystal clear that AHF has no
place as a litigant in this case.
But that, apparently, would be an argument for another
day, as Judge Pregerson asked First Amendment attorney
Paul Cambria, representing Vivid Entertainment Group
along with H. Louis Sirkin, who was also present, to state
his case for the TRO—and Cambria noted that he would
present arguments not only on the reasons for the TRO,
but also why AHF should not be allowed to participate
any further in the case.
But the judge would have none of that discussion.
“That issue is well-briefed,” he said, indicating to Cambria
that he was only interested in argument on the TRO.
Cambria began by noting that Measure B is unconstitu-
tional due to the fact that it is a content-based restriction
on First-Amendment-protected expression—that is, the
making of a sexually explicit adult movie.
48 | AVN.com | 8.13
Judge Pregerson, however, wasn’t about to accept that statement at face value, asking Cambria to clarify some
points.
Cambria began to describe how forcing performers to wear condoms would prevent producers from making certain
types of movies, giving examples such as a storyline involving a husband and wife who want to have a child or a
period film involving pirates set in the days before condoms had been invented.
Cambria eventually returned to his primary point, which is that a statute cannot ban lawful conduct—and he said
that is exactly what Measure B does: It creates a government-sponsored form of prior restraint. Cambria also noted
that Measure B targets only the adult industry, and thus is a content-based restriction of expression.
But when Judge Pregerson raised the question of whether any of the offending parts of Measure B could be severed
from the original legislation, Cambria replied that not only are the problem areas endemic to the law itself, but that
the courts are not allowed to rewrite legislation simply to attempt to expedite its enforcement.
Judge Pregerson then allowed Azulay to state AHF’s case for allowing Measure B to remain in effect during the
pendency of the litigation, but when she began by claiming that failure to do so would result in “irreparable harm” to
performers, he asked her instead to respond to Cambria’s First Amendment concerns.
However, when Azulay essentially said that she doesn’t see what all the fuss is about, since both CalOSHA regula-
tions and the California Health Code, particularly Section 5193, already mandate that condoms be used in porn
production, Judge Pregerson asked her if she was aware of any cases where those existing codes had ever been enforced
against an adult producer. After hemming and hawing a bit, she admitted that she was not aware of any such case, but
that she was aware of several investigations regarding whether those regulations had been followed.
c onsider ed a “sec ondary effect” of adult filmmaking, but Cambria
”The judge argued that under strict scrutiny, that would not be a sufficient
then asked if STD transmission could be
r eason to uphold the law .