part 2
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STATE OBSCENITY LAW CHALLENGED
ST. MARTINDALE, LA -- First Amendment attorneys J.D. Obenberger and Reed Lee have challenged the constitutionality of Louisiana’s obscenity statue during a hearing with State Judge Charles Porter here. The case involves criminal charges against Emmett Jacob Jr. of Le Video Store, with additional charges against Edward Burleigh Jr. of The Video Place, both of St. Martin’s Parish. The charges against Burleigh are in the balance depending on decisions in the Jacob case.
Obenberger said the wording of the Louisiana law makes it applicable to all adult entertainment that flows into Louisiana through the Internet, meaning it effectively imposes Louisiana’s standards on the remainder of the country.
Another key issue, he said, relates to the vagueness of the state’s law in spelling out exactly which community defines obscenity.
“What is the community whose standards will apply in this courtroom?” asked Obenberger. Would the “community” be St. Martin Parish, South Louisiana or the whole state? Without defined community standards a jury would be flying without wings, without navigation and without radar. That’s what makes the law unfair, he said.
Reed Lee, who is an FSC Board Director as well as an attorney with Obenberger’s firm, argued that laws prohibiting the sale of obscenity infringe on the privacy rights of residents who have a legal right to view the materials in their own homes. This argument echoes the language used by Judge Gary Lancaster of the U.S. District Court for the Western District of Pennsylvania in dismissing charges in the pivotal Extreme Associates obscenity case, now under appeal.
Assistant District Attorney Chester Cedars said the privacy argument was the only one put forward that has not been addressed by higher courts, though he doubted it would be successful. He said the Internet should not be a consideration in the case because the video-store owners are not accused of distributing adult entertainment on the Internet. In the matter of the definition of community standards, Cedars said that the Louisiana Supreme Court has already weighed in on the issue, ruling that the jury hearing a case should determine the relevant community.
Regardless of who wins in Judge Porter’s courtroom, the case will likely be appealed, both sides agreed. Judge Porter has said he will issue a ruling by August 28.
From Richard Burgess, Baton Rouge 2The Advocate, 8/18/05
http://www.2theadvocate.com/stories/081305/sub_adult001.shtml
And from KLFY Ch. 10, Acadiana, 8/12/05
http://www.klfy.com/Global/story.asp?S=3715523
Credit also to Woodhull Freedom Foundation for news alerts
www.woodhullfoundation.org
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CITY COUNCIL SETS 10 PM CLOSING TIME RULE
CENTENNIAL, CO -- This south of Denver community is tackling the problem of zoning for adult entertainment and facing much opposition due to the well-known “Not-In-My-Neighborhood” syndrome. A recent council meeting had record attendance and continued into late hours struggling with the issue. The problem? Spearmint Rhino wants to build a $6 million, 20,000-square-foot, high-end gentlemen’s club in Centennial. A one-year moratorium on adult entertainment licenses has been extended for a month while the city tries to figure out what to do.
During the aforementioned city council meeting, new, highly restrictive regulations for adult businesses were put in place, transparently aimed at discouraging businesses such as Spearmint Rhino from setting up camp in Centennial in the first place. Among the new regulations: 10 PM closing times!
Obviously, as a recent Denver Post editorial pointed out, a 10 PM closing time for an exotic dance club creates a serious financial handicap.
In a recent letter, Spearmint Rhino warned Centennial officials that they should draw up “reasonably restrictive” regulations for sexually oriented businesses, to avoid a situation that would “probably (result) in litigation.”
The issue is a delicate balancing act for city leaders, who are caught between vocal constituents and the Constitution of the United States.
“No other single jurisdiction in Colorado that we know restricts (adult businesses) to closing at 10 PM,” said City Attorney Bob Widner during the council meeting.
Councilman Vorry Moon said that if the hours were challenged in court, he would confidently stand before a judge and argue that 10 AM to 10 PM is ample time.
“You just might get that chance,” said Mayor Randy Pye.
From Manny Gonzales, The Denver Post, 8/17/05
http://www.denverpost.com/news/ci_2947930
And from John Aquilar, Rocky Mountain News, 8/17/05
http://www.msnbc.msn.com/id/8981518
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KANSAS GRAND JURY LAW USED AGAIN
SEDGWICK COUNTY, KS -- Relying once again on a Kansas law which mandates a grand jury investigation if enough names can be gathered on petitions, ( 2 percent of the total votes cast locally in the last governor’s election) a grand jury will now convene to decide whether seven adult businesses in the county violate the state’s obscenity laws. A Wichita group called Operation Southwind reportedly gathered 6,500 signatures, and county Judge Richard Ballinger ruled that the group had collected enough signatures to force the investigation.
This tactic has been tried in Kansas previously. Earlier this year a Salina grand jury was mandated as the result of petitions circulated by a group organized by anti-adult activist Phillip Cosby. The Salina grand jury refused to issue indictments.
In 2004 a Dickinson County grand jury was impaneled by a citizen petition drive, also led by Cosby. It returned a 29-count indictment against an adult store, but the indictment was thrown out because of improprieties in the petition-gathering process.
From Cindy Klose, KWCH Ch. 12 News, 8/15/05
http://www.kwch.com/servlet/Satellite?pagename=KWCH%2FMGArticle%2FWCH_BasicArt icle&c=MGArticle&cid=1031784462370&path=!news!local
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COURT AFFIRMS TOWN ZONING LAW
BOSTON, MA -- A three-judge panel of the state appeals court has ruled that the town of Tyngsboro could legally prohibit Donato DiRocco, the owner of a nightclub called Matthew’s, from hosting live nude dancing on the premises. DiRocco had sued when the town took away his liquor license because of nude dancing. The nightclub lies outside the town’s adult entertainment zone.
The appeals court found that the Massachusetts Constitution provides broader protection than the U.S. Constitution for adult entertainment. But the court said Tyngsboro acted legally by insisting that any nude dancing take place within the area of town zoned for adult-entertainment uses.
“… [T]he town did not completely prohibit a constitutionally protected form of expressive conduct, but instead used its zoning power to confine such activities to a particular zoning district in order to advance the substantial governmental interests of curbing crime, preserving property values, and minimizing dangers to public health,” said the court.
From Erik Arvidson, Lowell Sun, 8/17/05
http://www.lowellsun.com/local/ci_2946336
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OTHER NEWS OF THE WEEK
GREAT BRITAIN -- The government is reportedly considering making it a criminal offense to
view violent pornography on the Internet. Current British law allows for the closing down of British sites featuring material such as necrophilia and strangulation.
From The Times, 8/15/05
http://www.timesonline.co.uk/article/0,,2-1735973,00.htm
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KENTUCKY -- From TV Watch comes word that a Kentucky radio station canceled Garrison Keillor’s daily radio program on poetry and history after a poetry reading included the word “breast.” The station’s management said they were afraid the FCC would fine them.
From
www.televisionwatch.org
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LANSING, MI -- The ACLU has advised city officials to reconsider their decision to censor a Shakespeare in the Park production of “Titus Andronicus.” A theatre company was denied permission to perform a modern adaptation of the play. Officials said that the stage blood might be offensive to the audience.
From an ACLU press release, 8/9/05
http://www.aclu.org/FreeSpeech/FreeSpeech.cfm?ID=18899&c=42
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