The ruling could be a major blow to prosecutors throughout the state, who have made pornography a priority.
The case dates back to April of 2003, when District Attorney Keith Hoffman filed a 29-count indictment against Lion’s Den, claiming the store was illegally promoting obscenity by selling sexual devices. About two-thirds of the charges were dropped after Lion’s Den counter-sued.
The state has been a breeding ground for anti-porn forces, and religious groups — in particular, Citizens for Strengthening Community Values — who have been instrumental in convincing prosecutors to go after the store.
The group’s leader, Phillip Cosby, called out state officials in local newspapers, spearheaded a petition campaign and even recruited like-minded retirees to threaten motorists that they would tattle to their bosses and wives if they stopped at the store.
Hoffman responded by using a city ordinance on adult businesses to file obscenity charges against the store. Lawyers for the chain, which operates more than 25 stores in 13 Midwest states, promptly fired back with their own lawsuit claiming the ordinance was unconstitutional.
Judge Robert Innes this week threw out the state’s case, saying the ordinance is flawed. He pointed to a 1990 case in which the state Supreme Court ruled that state law forbids the legislature from declaring a device obscene solely on the basis that it relates to human sexuality.
The law was later changed to address the court’s decision, but Innes said the language was still overbroad.
Hoffman did not indicate whether planned to appeal the decision, but instead called on lawmakers to revise the state’s obscenity laws, saying prosecution will be difficult until they do.
However, Cosby, whose group is pressuring prosecutors in other Kansas communities to enforce those same laws, downplayed the decision.
“To say this one county judge dealt a fatal blow is quite an exaggeration,” Cosby said. “We’ve been discouraged before. We can’t give up. I’ve learned patience and persistence.”
