## Facts

- Los Angeles County voters enacted the County of Los Angeles Safer Sex in the Adult Film Industry Act (“Measure B”), creating a permit system for adult film production and requiring condom use in specified filming contexts.
- Measure B required producers to obtain and display a health permit, complete blood-borne pathogen training, and comply with condom-use rules.
- The ordinance stated public-health purposes: reducing sexually transmitted infections among performers and limiting transmission to the broader community.
- County public health officials notified plaintiffs—adult film producers and performers—of intent to enforce Measure B.
- Plaintiffs sued for declaratory and injunctive relief, alleging Measure B burdened protected expression, operated as a prior restraint through licensing, and altered expressive content by requiring condoms.
- The district court preliminarily enjoined discrete provisions (official discretion to set permit fees, warrantless search authority, and broad permit modification/suspension/revocation procedures) but declined to enjoin the condom mandate and core permitting requirements.
- Plaintiffs appealed seeking a preliminary injunction against Measure B in its entirety; official proponents intervened to defend the ordinance because the County took a neutral litigation position.

## Issues

1. Whether the court needed to decide intervenors’ Article III standing to defend the ordinance where plaintiffs had standing and the case was properly before the court.
2. Whether Measure B’s condom requirement and remaining production regulations should be evaluated under strict scrutiny or intermediate scrutiny under the First Amendment.
3. Whether the pared-down permitting requirements (training and permit-posting) likely constituted an unconstitutional prior restraint due to impermissible discretion or inadequate First Amendment safeguards.
4. Whether the district court properly granted only a partial preliminary injunction based on severability rather than enjoining the ordinance in full.

## Decision

- The Ninth Circuit affirmed the district court’s preliminary injunction order.
- The court declined to decide intervenors’ Article III standing because plaintiffs’ standing was sufficient for appellate jurisdiction.
- The court held the district court did not abuse its discretion by enjoining only the fee-setting, warrantless search, and broad revocation-related provisions while allowing enforcement of the condom requirement and core permitting provisions.
- Applying intermediate scrutiny, the court concluded plaintiffs had not shown a likelihood of success on the merits against the condom mandate at the preliminary-injunction stage.
- The remaining permitting requirements were upheld as likely constitutional because, after severance of the enjoined provisions, they involved little to no official discretion and served the County’s health interests.

## Legal Principles

- A regulation aimed at public health that targets conduct and only incidentally affects expression may be treated as content neutral and reviewed under intermediate scrutiny, including consideration of narrow tailoring and availability of alternative channels for expression.
- Under intermediate scrutiny, the government must show a substantial interest and a regulatory means that is narrowly tailored; a rule need not eliminate all expression to be upheld if it leaves the speaker able to convey the message through other means.
- Licensing schemes affecting expressive activity raise prior-restraint concerns when they grant broad official discretion or lack sufficient constraints; narrowed requirements with minimal discretion are less likely to violate the First Amendment.
- Severability permits a court to enjoin unconstitutional portions of an ordinance while leaving independently functioning provisions in effect, particularly where the measure contains a severability clause.
- On appeal from a preliminary injunction, the reviewing court asks whether the district court abused its discretion, not whether the challenged law is definitively constitutional on the merits.

## Conclusion

The Ninth Circuit held that, at the preliminary-injunction stage, Measure B’s condom requirement and core permit requirements were likely permissible under intermediate First Amendment scrutiny, while discrete permitting provisions that created excessive discretion and warrantless search authority could be enjoined and severed without halting the ordinance as a whole.


Vivid Ent. LLC v. Fielding, 774 F.3d 566 (9th Cir. 2014)