VICTORY IN SECONDARY EFFECTS TRIAL
       DAYTONA BEACH, FL -- After a trial, U.S. District Judge John Antoon has struck down city ordinances used to regulate exotic dance clubs here in a decision based primarily on the city’s “shoddy” secondary effects studies, which in turn reflect the city’s “stubborn refusal” to accept the evolution of the law as laid out in the U.S. Supreme Court decision in City of Los Angeles v. Alameda Books (2002) and in the 11th Circuit case, Peek-A-Boo Lounge of Bradenton, Inc v. Manatee County (2003). In Alameda Books, the High Court raised the bar on secondary effects evidence by making clear that municipalities cannot get away with shoddy data or reasoning and that their evidence for secondary effects must fairly support the rationale for an ordinance. In Peek-A-Boo, relying on Alameda Books, the 11th Circuit clarified the process for analyzing whether a ordinance is sufficiently supported by evidence of so-called secondary effects. Now it’s a new ball game. “Gone are the days when a municipality may enact an ordinance ostensibly regulating the secondary effects on the basis of evidence consisting of little more than the self-serving assertions of municipal officials,” said Judge Antoon, quoting from the Peek-A-Boo decision.
       The victory in this case, Daytona Grand Inc dba Lollipop’s Gentlemen’s Club v. City of Daytona Beach, will surely be heartening to those in adult entertainment who have long chaffed at the high-handed way regulatory groups have thrown around loose secondary effects arguments without having to answer for them. (See Mark Kernes, “The Myth of Secondary Effects.”)
       Congratulations to Lollipop’s and to their attorneys Brett Hartley and Daniel Aaronson. Congratulations as well to expert witnesses Daniel Linz and Randy D. Fisher, who dissected Daytona Beach’s flimsy rationale and generally gave a clinic on the scientific process, as chronicled rather delightfully in Judge Antoon’s decision. From the Lollipop’s decision. URL not available but readers who can’t find the decision online can obtain a PDF by emailing Layne@inreach.comLayne@inreach.com
And from the News Journal Online, 1/21/06
Thanks to Woodhull Foundation for the News Alert
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UTAH SPAM LAW CHALLENGE UPDATE
       SALT LAKE CITY, UT -- A group of mainstream marketing organizations and advertising trade associations, as well as two online privacy groups, have filed court papers asking permission to participate in FSC’s lawsuit challenging Utah’s anti-spam “child protection registry” law. (For details on the lawsuit see FSC’s challenge). The groups include the E-mail Sender and Provider Coalition, the American Advertising Federation, the American Association of Advertising Agencies, the Association of National Advertisers, the Electronic Frontier Foundation and the Center for Democracy and Technology. In court papers, the organizations state they are concerned that the registry already is having an adverse impact on their members and are asking to be allowed to file an amicus brief.
       Matthew Prince of Unspam Technologies, Inc, the company that provides the software that Utah (as well as Michigan and possibly other states) use in their “child protection registries,” issued a statement expressing surprise that mainstream companies wanted to get involved in the case.
       "I'm surprised that organizations like the Association of National Advertisers--whose boards are made up of companies like Wal-Mart and LeapFrog, and who have been at the forefront of protecting the rights of individuals and parents to choose what material comes into their homes--would support a lawsuit by the pornography industry, arguing that they have the right to send whatever and whenever they want, and to whomever they want," said Prince.
       Absent from the groups offering to file the friend-of-the-court brief was the Direct Marketing Association. According to an unidentified source in an industry report by Ken Magill, the DMA did not join the other trade groups because, among other reasons, it was squeamish about publicly supporting an adult entertainment group.
       Lou Mastria, vice president of interactive and emerging media for the DMA, denied that his organization is squeamish on this issue. He said the DMA typically doesn't file amicus briefs on the trial court level, but does so on the appellate level.
From Ken Magill, Directmag.com, 1/25/06
And from Wendy Davis, Mediapost.com, 1/26/06
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CITY HURRIES TO FIX ORDINANCE
       FLAGLER BEACH, FL -- The City Commission here has reduced the city’s adult entertainment application fee from $10,000 to $500. The action, it will come as no surprise, was not aimed at attracting adult entertainment to the Flagler Beach area. Rather, it reflects an effort to rework the adult ordinance to help defend against a lawsuit filed by Attorney Luke Lirot earlier this month on behalf of Liquid, Flagler Beach’s newest exotic dance club. Bringing down the inflated application fee may not be enough to save the ordinance, however. Lirot says the city's ordinances are not based on "secondary effects" triggered by exotic dance clubs.. Instead, the laws are based on the premise that adult entertainment is offensive to some, which violates the Constitution, he said.
       "The whole concept reeks of discrimination because people have a vision of people who participate in adult entertainment as being worse than others," he said.
       Lirot also says that under the city's current laws, there are no viable locations for adult entertainment clubs. Liquid is located in an area zoned as "tourist commercial." City laws, however, restrict adult clubs to areas zoned "light industrial." According to Larry Torino, the city's planning and zoning director, the only such zone is a 24-acre swath west of the Intracoastal Waterway near the city's wastewater plant. Most of that land is city-owned, Torino said.
       While hoping for a temporary restraining order on the city ordinances, the dancers at Liquid are avoiding citations for nudity by dancing with clothes on.
From Janette Neuwahl, News Journal Online, 1/21/06
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BILL ADDS VIOLENCE TO HARM TO MINORS LAW
       SALT LAKE CITY, UT -- State Representative David Hogue (R-Riverside) has introduced a bill that would amend the state’s “Material Harmful to Minors” law, adding “inappropriate violence” to the list of items currently illegal to provide to minors. Under current law, harmful matter consists of materials that are “obscene for minors” under Supreme Court guidelines that say some materials that are not obscene for adults can be obscene for minors, such as, for example, explicit nudity. Included as inappropriate violence in Hogue’s bill (HB257) is violence, of whatever form, when it is glamorized or gratuitous, used to shock or stimulate, trivializes the serious nature of realistic violence, uses brutal weapons, etc. The list goes on.
        Hogue is perhaps a bit unclear on the legal precepts. "You can't just stick violence into an obscenity statute and expect it to stand up to constitutional scrutiny," says Margaret Plane, Legal Director of the ACLU in Utah. "Obscenity is not protected speech. Government can regulate obscenity. The courts have not said the same thing about violence. The courts hold that even juveniles have First Amendment rights. There has to be a compelling basis that the harms are caused by the violent video games."
From Glen Warchol, The Salt Lake Tribune, 1/21/06
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UPDATE ON ADULT PROGRAMMING ON STUDENT TV
       SAN DIEGO, CA -- Calling the bluff of the University of California San Diego administration, UCSD undergrads will have an opportunity to vote this week on whether to rescind a decision by their student government (Associated Students) to ban "graphic depictions of sexual activity involving nudity" on Student Run Television. At the moment, Student Run Television, including Steve York’s highly controversial Koala TV, is unplugged. The opportunity to vote on the matter follows a petition drive that garnered 2,600 signatures. According to a press release by York, the University administration already refuses to recognize the election results, this despite claiming since last February that the debate surrounding closed circuit amateur adult programming during evening hours would be decided solely by students.
        X-Press has been following this story since it started, using mostly reports from FSC member Steve York, who is the central character in the controversy. The issues involved are intriguing. Sanctioned adult entertainment for university students is virtually unheard of. And yet, UCSD students are adults who should have a right to decide for themselves what sort of programming they enjoy, and this is especially true since the brief amateur programming that actually took place, mostly involving York and an unidentified adult actress, was broadcast to the campus pub, where cheering students, all presumably ID’d as being over 21, watched on closed-circuit monitors. Still, the political ramifications are obvious. What will the parents think if word gets out? And the alumni? The big donors? A conundrum for the administration. No doubt they have reasons to censor Koala TV and yet they have committed to giving students the choice. At a recent rally in which student advocates of Koala programming tried to drum up support, a scuffle broke out. High drama. We await the outcome of the vote with interest.
From a Koala-TV Press release. URL not available
And from NBC San Diego, 1/25/06
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XXX DOMAIN AND LINCOLN BILL GAIN SUPPORT
       LITTLE ROCK, AR -- After signaling his inclinations at the recent hearing of the Senate Commerce Committee on “Protecting Children on the Internet,” Senator Mark Pryor (D-AR) has announced support for a dot-triple-x top-level domain that would include all adult entertainment material available online. Early news accounts do not specify how Pryor envisions enforcing the concept, given the oft-mentioned problems of the percentage of adult entertainment that originates overseas and the constitutional limits on the governments ability to regulate legal, non-obscene speech.
        Pryor also announced support for fellow Arkansas Senator Blanche Lincoln’s (D-AR) “The Internet Safety and Child Protection Act,” also considered by First Amendment groups to be constitutionally infirm. The act would require age verification prior to the display of adult entertainment materials on a Website; and would also provide for an excise (sales) tax in the amount of 25 percent, to be levied on “regulated pornographic Websites,” which are defined as those Websites required to maintain documents under section 2257, the federal record-keeping law currently being challenged by FSC. The resulting revenues would be earmarked for various government and private programs dedicated to protecting children from sex crimes or supporting Internet safety programs and the like.
From The Associated Press, 1/26/06
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ULTIMATE CENSORSHIP
       BOSTON, MA -- Within a week, two Amazing Adult Superstores here have gone up in flames due to unexplained causes. Both stores burned to the ground.
        “I’ve been in this job long enough to know there are times when there are coincidences,” said state Fire Marshal Stephen Coan after the Amazing Superstore in Peabody went up in smoke less than 12 miles from the location of the Amazing video store on Main Street in Reading that burned earlier.
        Dear Marshall Coan: Please contact us. We have some excellent beach properties in Pt. Barrow Alaska that you may find interesting.
From Laurel Sweet, Boston Herald, 1/23/06
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COME CELEBRATE FREE SPEECH IN CALIFORNIA
       It’s time to mark your calendar to attend our acclaimed lobbying training program, Celebrate Free Speech Lobbying Days (CFSLD), in Sacramento, California. The dates are Monday and Tuesday, April 24 and 25, 2006, and as always, space is limited.
       The two-day event will include a full day of political action training for participants, as well as our popular cocktail reception for legislators and staff. Deadline for applications is March 10, 2006. Call the Legislative Affairs Office at 1-800-476-7813 or e-mail layne@inreach.com for more information and an application form.
       CFSLD continues to be an inspiring and empowering activity for those who attend and is a great staff development opportunity for industry leaders. Don’t miss it in 2006!
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UpComing Events

MAR 9, – GAYVN Awards 2006, Rage Nightclub, Santa Monica Blvd., West Hollywood CA , http://www.gayvnawards.com/geninfo.php

APR 24-25, – Celebrate Free Speech Lobbying Days, Sacramento, CA, layne@inreach.com

APR 29, – 2nd Annual Sin City Chamber of Commerce Spring BBQ, Chicken Ranch Brothel, Pahrump, NV (benefit for FSC) http://www.sincitychamberofcommerce.com/chicken_ranch_brothel_bbq_sin_city.htm

MAR 30-APR 1, – The Phoenix Forum, Tempe Mission Palms

APR 3-5, – International Lingerie Show - Las Vegas

JUN 8-11, – Cybernet Expo 2006, Shelter Pointe Hotel, San Diego

APR 24-25, – Erotica Los Angeles, Los Angeles Convention Center

JUL 19-22, – Lifestyles West, Las Vegas Stardust

AUG 4-6, – Internext Summer 2006, Weston Diplomat, Hollywood, FL

SEPT 23-24, – Adultcon 11, Los Angeles Convention Center