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Vivid Entm't, LLC v. Fielding - 774 F.3d 566 (9th Cir. 2014)


Courts asked to issue preliminary injunctions based on First Amendment grounds face an inherent tension: the moving party bears the burden of showing likely success on the merits and yet within that merits determination the government bears the burden of justifying its speech-restrictive law. Therefore, in the First Amendment context, the moving party bears the initial burden of making a colorable claim that its First Amendment rights have been infringed, at which point the burden shifts to the government to justify the restriction. But even if the plaintiff demonstrates likely success on the merits, the plaintiff still must demonstrate irreparable injury, a favorable balance of equities, and the tipping of the public interest in favor of an injunction. That is, although a First Amendment claim certainly raises the specter of irreparable harm and public interest considerations, proving the likelihood of such a claim is not enough to satisfy the requirements for a preliminary injunction. Even where the plaintiff is likely to succeed on the merits of his First Amendment claim, he must also demonstrate that he is likely to suffer irreparable injury in the absence of a preliminary injunction, and that the balance of equities and the public interest tip in his favor. 


Plaintiffs Vivid Entertainment, LLC; Califa Productions, Inc.; Kayden Kross; and Logan Pierce were organizations and individuals who made adult films in Los Angeles County. Defendant Jonathan Fielding, the Director of Los Angeles County Department of Public Health, sent plaintiffs a letter stating his intention to enforce the voter-initiated County of Los Angeles Safer Sex in the Adult Film Industry Act (2012) ("Measure B"). Measure B imposed a permitting system and additional production obligations on the makers of adult films, including a requirement that performers wear condoms in certain contexts. Plaintiffs filed an action in federal district court seeking declaratory and injunctive relief, arguing that Measure B burdened their freedom of expression in violation of the First Amendment. Defendant Los Angeles County answered that, although it would enforce the ordinance unless ordered by a court not to, it did not intend to defend Measure B because it took a "position of neutrality" with respect to the ordinance's constitutionality. The official proponents of Measure B intervened in the action to defend it. The district court issued a preliminary injunction forbidding defendants from enforcing Measure B's fee-setting provision, which gave defendants discretion to set fees for permits; a provision that allowed warrantless searches by county health officers of any location suspected of producing adult films; and the broad permit modification, suspension, and revocation process. The court denied preliminary injunctive relief, though, for much of the ordinance, including its condom and permitting requirements. Plaintiffs appealed the district court's decision not to enjoin Measure B in full.


Was the trial court's injunction proper?




The appellate court affirmed the district court's judgment. The court held that the district court did not abuse its discretion by holding that the invalid portions Measure B were severable. Further, the district court did not abuse its discretion in denying a preliminary injunction with respect to the requirement that performers wear condoms and with respect to certain permitting provisions. The requirement that performers wear condoms survived intermediate scrutiny because it had only a de minimis effect on expression, was narrowly tailored to achieve the substantial governmental interest of reducing the rate of sexually transmitted infections, and left open adequate alternative means of expression.

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