Vivid Entertainment, LLC, et al. v. Jonathan Fielding, Director of Los Angeles County Department of Public Health, et. al.

In 2012 Los Angeles County enacted the Safer Sex in the Adult Film Industry Act (Measure B). Measure B imposed multiple requirements on adult-film producers, including the requirement that all performers exposed to blood-borne pathogens through vaginal or anal intercourse wear condoms. In response to the condom requirement, Vivid Entertainment, LLC, and others involved in the adult-film industry (collectively, the industry) (plaintiff) filed an action in federal district court against Jonathan Fielding (defendant), who was the Director of the Los Angeles County Department of Public Health (the department). The industry claimed that the condom mandate violated its right to freedom of expression granted by the First Amendment to the United States Constitution. The industry argued that condomless sex performances convey a different message about the risks and concerns of sex than sex performances with condoms portray. The industry further argued that requiring condoms amounted to a complete ban on expression, which triggered strict-scrutiny review. Alternatively, the industry argued that even under immediate-scrutiny review, the condom requirement was not narrowly tailored to protect public health, because the industry had already implemented measures to protect its performers from blood-borne pathogens. However, the department submitted evidence that a previous investigation revealed that performers in the industry had a much higher rate of sexually transmitted infections than the general population. The purpose of the department’s evidence was to show the ineffectiveness of the industry’s protective measures. The district court found that the industry’s protective measures were ineffective, and that the industry was unlikely to succeed on a First Amendment claim concerning the condom requirement. The district court denied the industry’s request for preliminary injunctive relief. The matter was appealed.