Page 49 - AVN August 2013

Azulay also claimed that no conduct was being curtailed by Measure B, adding later
that she believed that the sex could be simulated without impairing the message, or that
green-screening could be used to remove the condoms from the finished film.
But when the judge asked how to tell whether Measure B was restricting expression or
conduct, Azulay began by claiming that the “findings” in the preamble to the law stated
that the prevalence of STDs was a concern to L.A. County—but the judge cut her off,
noting that those “findings” were not made by a governmental body, and that she should
answer his question instead. Azulay then argued that the Measure B issue should be
viewed as a “balancing test” between protected expression and the county’s wish to stop
the spread of STDs, and in response to the judge’s further questioning, claimed that
adult movies could easily tell their stories even with condoms by using careful editing
and green-screens.
Regarding the plaintiffs’ claim that Measure B is overbroad, Azulay responded that it
applies to mainstream producers as well as adult, but noted that blood or other infectious
materials on a mainstream set happen by accident, but that in porn, the sex is planned so
that semen is present.
When it again came Cambria’s turn at the rostrum, he seized on the underinclusive-
ness of Measure B, saying that there were no plans to require mainstream producers to
obtain health permits, so the measure was clearly directed only at the adult industry.
Cambria them moved on to his Fourth Amendment arguments, noting that Measure
B gives the health department inspectors the power to enter a premises, even a private
home, where “commercial sexual activity” was taking place, without probable cause. He
also deemed Measure B to be an “invasion of the creative process,” which he said was a
First Amendment violation.
Judge Pregerson then raised the issue of whether Measure B could be viewed simply as
a type of zoning regulation, but Cambria countered that zoning restrictions are based on
alleged secondary effects caused by the zoned business, so that argument wouldn’t apply.
The judge then asked if STD transmission could be considered a “secondary effect” of
adult filmmaking, but Cambria argued that under strict scrutiny, that would not be a
sufficient reason to uphold the law. He also noted that the statute only applies to Los
Angeles County, and that if its purpose was to curtail disease, it doesn’t serve that
purpose, since even AHF had admitted that adult producers could simply shoot movies
outside the county. Rather, the “purposes” it serves are “curtailed expression” and
alteration of the material’s message.
The judge then allowed Azulay to respond, but she continued to push her “balance of
harms” argument, saying that a performer’s interest in not being infected balanced a
producer’s interest in creating a certain storyline in a movie. She also argued that movie
sets could be inspected under Measure B without violating the Fourth Amendment
because the adult industry was “highly regulated”—an argument identical to one of the
ones used at the recent trial in Philadelphia over the federal recordkeeping and labeling
law, 18 U.S.C. 2257.
Cambria got the last word, noting that all of AHF’s “findings” as stated in Measure B’s
preamble had been refuted in plaintiffs’ briefs, that their “secondary effects” argument
fails because there would need to be a finding that such secondary effects exist, and that
in any case, secondary effects are not content-based, though Measure B clearly is.
With that, Judge Pregerson adjourned the case, but did not indicate when he might
rule on the TRO.
“We were pleased that the judge had read all of the materials and had a good grasp of
the issues under discussion,” Cambria said after the hearing had concluded. “We look
forward to moving on with the case, and hope the judge embraces our arguments.”
“We are pleased that we had the opportunity to argue the case,” added plaintiff Steve
Hirsch, who attended the hearing with his sister Marci. “It was clear the judge was
extremely knowledgeable as to the facts and we look forward to moving ahead.”
Also in attendance at the hearing were Free Speech Coalition CEO Diane Duke and
Membership Director Joanne Cachapero, as well as attorney Allan Gelbard and others.
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For a longer article plus updates on the Measure B lawsuit and other news stories affecting the
adult industry, go to AVN.com.
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