Jan 11, 2013

Posted in Uncategorized

LA Porn Condom Requirement “imposes an intolerable burden on the exercise of rights under the First Amendment”

Who said the Constitution can’t be sexy?

Adult film producer Vivid Entertainment is seeking to overturn the newly passed Los Angeles County ballot measure requiring porn performers to wear condoms during filming.

The lawsuit was filed in federal court Friday on behalf of Vivid, one of the nation’s most prominent adult film makers, along with two porn performers. The suit argues that the condom-porn measure violates the 1st Amendment protection of free expression. The ballot measure was passed with 57% of the vote in November.

The new ordinance “imposes an intolerable burden on the exercise of rights under the First Amendment,” the suit says.

From their complaint:

1. It is beyond dispute that erotic adult films are protected by the First Amendment, as applied to the States and their subdivisions under the Fourteenth Amendment. See, Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981); Cily of Rerzroh v. Playtime Theatres, 475 U.S. 41 (1986). Plaintiffs Vivid, Califa, Ms. Kross, and Mr. Pierce count themselves among the many producers, distributors, and performers of works that explore the “great and mysterious motive force in human life [which] has indisputably been a subject of absorbing interest to mankind through the ages,” sexuality and sexual relations. Roth v. U.S., 354 U.S. 476, 487 (1957). Through this action, Plaintiffs seek to protect the First Amendment rights of producers of sexually oriented films, to uphold the supremacy of the law of the State of California, and to protect the livelihoods of those who work in and around the adult film industry.

And how does it violate the First Amendment?

The provisions of Measure violate the First Amendment by curtailing freedom of expression via a county ballot initiative. The exercise of First Amend-ment freedoms cannot be limited by referendum. Buckley 12. American Constirutionai Law oanal, 525 U.S. 182, 194 (1999) (“The voters may no more violate the United States Constitution by enacting a ballot issue than the general assembly may by enacting legislation”); West Virginia State Bd. afEduc. v. Barnette, 319 U.S. 624 (1943) (“One’s right to life, liberty, and property, to free speech, a free press, free- dom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections”). Imposing regulation in this way is inherently content-based. Board of Regents of the Univ. of Wisconsin Sys. 12. Southworth, 529 U.S. 217, 235-36 (2000). The fact that Measure was presented as a “public health” ballot measure does not immunize it from First Amendment scrutiny Sorreli 12. IMS Health, 131 S. Ct. 2653 (2011).

59. Measure further empowers Department inspectors to take possession of “any evidence” that “bears on” compliance with Measure B, without limitations or a cause requirement, which conceivably could include sole copies of expressive works produced in alleged violation of Measure B. In addition, Measure permits the suppression of expression and speech by imposing serious civil and criminal penalties for non–compliance with its permitting and/or barrier-protection requirements. 60. Measure thus violates the First Amendment by standing as an unconstitutional prior restraint upon protected expression and upon the creation and dissemination of protected speech.

Read through the description of the parties. Its SFW, but funny.

10. Plaintiff Kayden Kross is a performer who appears in adult films produced in the County of Los Angeles, California. Ms. Kross has worked in adult films for over six years, has during that time been a contract performer for Vivid, Adam Eve, and Digital Playground, and has appeared in approximately 75 adult films. She has also appeared in several episodes of The Block, a reality program on G4TV, and of Life on Top on Cinemax, as well as in the FX comedy series The League, the theatrical motion picture The Obsession, and as a lead in the film As Wonderland Goes By. Ms. Kross writes columns regularly for publications such Cornpiex and Xhiz magazines, has contributed to Timothy McSweeny Internet Tendency, and her short story “Plank” appeared in the 2012 e–book collection Forty Stories: New Writing from Harper Perennial. Ms. Kross has also won several awards for her roles in adult films, from AVN and XBIZ, among others. Ms. Kross’s expressive contributions to adult films are directly affected by requirements imposed under Measure B.

The complaint isn’t hard to unwrap. Let’s see if it sticks.

Update: I should note that this is a *facial* challenge.

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