Vivid Entertainment v. Fielding

The presence or absence of a condom in adult films is not a significant enough detail to be considered an "expressive message" for the purposes of protection under the First Amendment.

In 2012, the people of Los Angeles County enacted a law requiring producers of adult films to obtain a “public health permit” before filming any pornographic films in the county. The law also requires that participants in the films wear condoms before partaking in any vaginal or anal intercourse, and it imposes civil and criminal penalties for violators of the law. Plaintiffs, Vivid Entertainment, LLC and other individuals in the adult film industry, filed for a preliminary injunction from the law, claiming that it violates the First Amendment rights of all involved. The district court severed parts of the initiative, denying injunctive relief on some chapters of the measure, including the condom mandate. Plaintiffs appealed the district court’s decision, contending that they should have received full injunctive relief. With regard to the condom mandate, the Ninth Circuit explained that in determining whether conduct was protected by the First Amendment, the court looks at whether there is a “great likelihood” that the general public would understand the particular message in question. The plaintiffs argued that the presence of a condom in the films will inhibit the expression of spontaneous sex by reminding the viewer of real-life problems like the potential to transmit diseases or become pregnant. The panel disagreed, explaining that the presence or absence of a condom is too small a detail for the general public to interpret as a message or to even notice. Additionally, the integral message that is expressed in adult films is not condom-less sex, but is actually the erotic behavior of adults. Therefore, due to the “de minimis effect on expression” of the condom mandate, the panel affirmed the district court and held that they would not impose the injunction. AFFIRMED.