US Supreme Court Declines Peek at VoyeurDorm

Frederick S. Lane III

Fred Lane returns with another legal update to help keep you well informed of the important issues affecting Adult Webmasters and society today. As always, keeping "abreast" of these issues is one of the most important responsibilities we face. Check it out:

Pornography & Obscenity in the Courts
Last fall, the U.S. Court of Appeals for the 11th Circuit (covering Florida, Georgia, and Alabama) ruled that the City of Tampa could not use its existing zoning regulations to prevent from operating in a house located in a residential neighborhood. The City of Tampa took the case to the United States Supreme Court, but in a one-line decision, the high court refused to hear the appeal. As a result, the 11th Circuit's decision remains in effect. While the decision is only binding on communities in the 11th Circuit, it is likely that the decision will be enthusiastically cited by industry lawyers around the country.

In Massachusetts, the Gay & Lesbian Advocates & Defenders (GLAD) are celebrating a decision by the Supreme Judicial Court limiting the scope of two anti-sodomy statutes. From a technical point of view, GLAD lost its case--the SJC ruled that the lawsuit should be dismissed--but during the course of the litigation, the Massachusetts Attorney General and various state prosecutors stated that they would not use the law to punish "consensual conduct in private between adults."

Across the country in Arizona, the ACLU scored another victory in its on-going battle against state "harmful to minors" laws aimed at the Internet. The U.S. District Court in Arizona ruled that the state's attempt to regulate material on the Internet was a vilation of the Constitution under both the Commerce Clause and the First Amendment. While "harmful to minors" laws have generally been upheld by state supreme courts as a legitmate means of regulating materials in-state, they have consistently run into trouble in federal court. That may bode well for the industry when the U.S. Supreme Court issues its decision in the COPA case later this spring; the federal statute is specifically modeled on state "harmful to minors" laws.

And finally, in New York, legendary porn publisher Al Goldstein is awaiting sentencing after being convicted of making threatening phone calls and harassing his former secretary, Jennifer Lozinski. In the fine tradition of Abby Hoffman and Larry Flynt, Goldstein got himself handcuffed and arrested during the trial when he flew into an obscenity-laced tirade at prosecutor Charles Hynes. Goldstein could be sentenced up to a year in prison.

... in the Legislatures
South Dakota has been particularly active in the Internet realm this winter. During the second half of February, the state legislature passed two new Internet-related statutes, both of which have been signed into law by Governor Bill Janklow. The first is a statute updating the state's child pornography law; specifically, the law revises the definition of "visual depiction" to include various electronic media. In addition, the law requires internet service providers, film developers, and computer repair technicians to report child pornography. The second law adds South Dakota to the list of states regulating e-mail advertisments. Advertisers must use the letters "ADV" or "ADV:ADLT" in their subject lines, and must give recipients a clear process for getting off the mailing list.

Utah is also considering anti-spam legislation, and the measure is expected to pass. In Hawaii, two bills are under consideration which would reduce the incidence of sexual exploitation of minors. One would create a state analog to the federal government's 2257 requirements, and the other would make it a felony to hire a minor to work in a sexually-oriented business.

... in Politics
Various communities around the United States are considering restrictions on adult businesses. In Starksboro, Georgia, an application for a business license by an adult entertainment club sparked a movement to adopt an adult business ordinance. Under the regulations, adult businesses would be barred from opening within 500 feet of various facilities, and would effectively be limited to two small areas of the town.

In Yellowstone County, Montana, a 1,000-foot restriction is under consideration as county officials wrestle with ways to stop an possible influx of strip clubs. In December, a club called Planet Lockwood opened in anticipation of the American Bowling Congress's annual tournament, and county officials discovered to their dismay that existing ordinances gave them little ability to regulate the adult clubs.

As expected, the seaside community of Unalaska, Alaska is forging ahead with several anti-adult business ordinances. The first, a ban on public nudity, is scheduled to take effect in early March. Also currently under consideration are an ordinance to govern the operation of adult clubs and another to regulate where such clubs may be located.

... in Business News
Hustler is at the top of the business news this month. Faced with a serious threat to its magazine division (Larry Flynt has repeatedly bemoaned the impact of the Internet on his print publication), the company has been steadily diversifying into the retail and live entertainment sectors. Close on the heels of the opening of its San Diego retail store, Hustler announced the opening of a new strip club in the North Beach area of San Francisco. Under city regulations, the club can only feature nudity 10% of the time, but Hustler officials still think the facility can be a success.

Hustler's retail store in Monroe, Ohio ran into a minor blip last month when billboard company Lamar Outdoor Advertising announced that it would not renew Hustler's lease for two area billboards. The company announced that it was responding to complaints from local officials and residents that the billboards were inappropriate. However, Lamar will continue to rent billboards to Hustler in other parts of Ohio.

In the aftermath of the September 11 destruction of the World Trade Towers, the state of New York has been funneling funds to nearby businesses through the Empire State Development Corp. At least one adult business, Toys in Babeland, has received $10,000 in disaster-relief funding. The women-owned store specializes in "quality vibrators, dildos, strap-ons, other adult toys, books, and adult videos."

... in Culture & Society
Anybody who's spent anytime online knows how freqently the ads for the X10 camera pop up. Increasingly, the X10 camera is popping up in police reports as well, as voyeurism and secret surveillance becomes a steadily more serious problem. In Coralville, Iowa, for instance, a husband and wife used the X10 camera to take hidden camera pictures of their neighbor and his girlfriend. In Ottawa, Kansas, a co-owner of a bar is facing charges for electronic eavesdropping after a hidden camera was discovered in the women's bathroom. And in Peculiar, Missouri (no, that is not a joke), a member of the Board of Alderman resigned after he was accused of secretly taping a 17-year-old female tenant in his apartment building.

By contrast, there is nothing surreptitious about the efforts of '80's pop start Tiffany to jumpstart her career with a 10-page pictorial in the April edition of Playboy Magazine. Now 30, married, and the mother of a 9-year-old, Tiffany is reportedly anxious to shake the bubble-gum, "Mall of America" image that has dogged her career in the U.S. Whether her silicone-enhanced photo shoot will do the trick remains to be seen.

And finally, the presence of pornography has come under attack in a variety of spheres, including the supermarket, network television, and even fire houses. The American Decency Association sent out its fifteenth letter of the last two years, alerting supermarket chains across the country of the sexual content contained in various women's magazines. While the organization claims some success in getting blinders put in the magazine racks, there is no movement afoot to abandon Cosmopolitan. In Anchorage, Alaska, the fire department has issued a reminder to all fire houses to remove pornographic materials.

In the meantime, network television continues its quiet but steady effort to compete with cable television. The most recent foray was NBC's "Watching Ellie," which flashed a male butt for the nation's amusement during the 8:30-9:00 slot, marking one of the earliest broadcasts of nudity on network television. Even on shows that do not feature outright nudity, actresses seem to be competing to see who can wear the most deeply-scooped t-shirts and bend over the longest (the current leader in the clubhouse is Marge Helgeberger from CSI, who offered a jaw-dropping view as she bent over a bed looking for -- you guessed it -- signs of sexual fluids).

Pornography in the workplace is an on-going concern for both employers and employees. In Anchorage, Alaska, the fire department has issued a reminder to all fire houses to remove pornographic materials. However, a debate is brewing (not surprisingly) over what should or shouldn't be included: is "Maxim," for instance, pornographic or simply offensive? For the time being, departments are erring on the side of good taste.

Frederick Lane operates, an online library of news, legislation, and court cases relating to pornography and obscenity and the Porn Industry Observer. He is also the author of "Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age" (Routledge 2000).

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