At a meeting earlier this week, County Attorney David Hallman offered a draft ordinance for consideration by the board, despite reported concerns on his part, as well as that of Commissioners Mike Boyle and Barry Holloway, over potential legal challenges that could prove costly for the County.
"I'd be remiss if I didn't tell you that you'd be out at the edge if you adopt this," Hallman said, commenting on the existing Adam & Eve outlet that would be in violation of the law if enacted.
"I will tell you that I've been made to understand that you can go a couple of miles down the street and purchase CD-ROMs depicting each of these things [that would be prohibited by the ordinance], except perhaps sexual conduct with minors, which is a violation of federal law," Hallman said.
"Of all the loony ordinances we've seen lately, this one takes the cake," Lawrence Walters, an attorney representing the store in question, told XBIZ. "The County is attempting to create a new category of unprotected speech as a method of driving our client out of business."
According to Walters, if this ordinance is upheld, it would likely be passed by every local government that desires to eliminate adult bookstores from their jurisdiction.
"Apparently, Nassau County believes that they are the first ones who thought about outlawing commercial pornography as a means of eliminating adult businesses," Walters said. "Unfortunately for the County, the First Amendment poses a significant hurdle for their efforts."
"It seems to me like we're being asked to legislate morality in Nassau County," Holloway said. "I'm not against it, but I want to be very clear that that's what we're going to do."
The proposed ban defines pornography along the lines of the Miller Test, as "described or depicted sexual conduct that the average person, applying contemporary community standards, would find that, taken as a whole, appeals to a prurient interest," and "that the work, taken as a whole, lacks serious literary, artistic, political or scientific value."
"This modified Miller Test that they've invented appears to be blatantly unconstitutional under a long line of Supreme Court cases — most recently FSC v. Ashcroft, which struck down another modified Miller Test dealing with virtual child pornography," Walters said.
"But I wouldn't be surprised if the County goes forward with this effort," Walters added. "It is election season, after all."
