APPEALS COURT CONSIDERS FSC FEE AWARD
SAN FRANCISCO, CA -- AVN Senior Editor Mark Kernes was present for the U.S. Ninth Circuit Court of Appeals arguments over whether the Department of Justice must pony up for attorney fees incurred by Free Speech Coalition in fighting the clearly unconstitutional parts of the Child Pornography Prevention Act (CPPA). The law would have criminalized adult actors portraying underage characters in erotic scenes, both in adult entertainment and in mainstream movies. FSC won the case in a landmark Supreme Court decision. A district court judge awarded attorney fees to FSC but the DOJ appealed the award.
        No doubt it rankles them a bit at Justice to not only lose the case but have to pay for it as well. However, if they do have to cough up some money, it’s their own fault. The law never should have been written and the DOJ never should have defended it, to paraphrase FSC attorney Lou Sirkin’s arguments at the hearing.
        As Mark’s AVN report describes in detail, the government’s case against the fees is partly based on Ninth Circuit cases in which the government is off the hook if it was: 1) substantially justified in taking its original action; and, 2) substantially justified in defending the validity of the action in court. During arguments the government said that its position was reasonable because, among other things, in four earlier criminal trials, judges all found a way to hold the CPPA constitutional.
        However, as Sirkin pointed out in his arguments, all of the criminal cases involving the CPPA were cases where actual, not “virtual,” child pornography was at issue, and the use of the CPPA to prosecute them was essentially “gilding the lily.” Child pornography -- sexually explicit material involving real children ­ is illegal per se and had been for more than a decade before the enactment of the CPPA, so all of those defendants would have been found guilty even if the CPPA had never existed. For more see Mark’s report (URL below).
        FSC’s Board and staff eagerly and anxiously await the Ninth Circuit decision. As much as $200,000 is at stake and Lou Sirkin has already been paid; so that money, well spent and now well deserved, would go directly back into FSC’s coffers.
From Mark Kernes, Adult Video News, 4/14/05
http://www.avn.com/index.php?Primary_Navigation=Articles&Action=
View_Article&Content_ID=223412
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COURT DECISION PLACES ADULT STORES AT RISK
NEW YORK, NY -- Amendments to the city’s adult business zoning ordinance have been upheld by the Appellate Division of State Supreme Court here. However, a day after that ruling, a judge from the same court enjoined the decision so that the affected business can appeal to the state’s highest court, the Court of Appeals in Albany. At stake are the numerous so-called “60-40 adult businesses” that the city argues have taken advantage of a vagueness in the original zoning ordinance. Courts had interpreted the ordinance as allowing a store or club to operate in residential neighborhoods as long as 60 percent of its merchandise was not sexually oriented. City attorneys claimed the 60-40 stores and clubs had “abused” the law by stocking their shelves with videos no one wanted to buy such as golf instruction titles or “Bambi.”
        The city tried to toughen standards with amendments to the ordinance, only to be met with a court challenge by the adult businesses. The businesses claimed that the amendments were illegal because the city did not conduct a study showing that the stores and clubs were bad for neighborhoods.
        In 2003, Justice Louis B. York of State Supreme Court agreed with the adult businesses that the amendments were unconstitutional. However, this decision by the appellate court overturned Judge York’s ruling. The adopted amendments, said the panel of four judges, simply furthered the original purpose of the law.
        The quick granting of the injunction may have prevented the businesses from being immediately closed by the city, according to Herald Price Fahringer, an attorney representing several of the businesses.
“The city was all geared up to padlock these businesses,” said Fahringer. “This stay is the difference between life and death for these business owners.”
From Sabrina Tavernise, The New York Times, 4/13/05
http://www.nytimes.com/2005/04/13/nyregion/13porn.html?8br
And from Deborah S. Morris, The Greenwich Times, 4/14/05
http://www.greenwichtime.com/news/local/newyork/nyc-nysex144217234apr14,0,4210491.story?coll=nyc-nynews-print
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COPS RAID ADULT STORE
       MINDEN, AL -- Acting as part of a Grand Jury investigation, and after a three-month undercover operation, state police and Webster Parish sheriff’s deputies have raided La Video Plus, an adult store here. The cops seized hundreds of movies, magazines and displays. Startled customers were allowed to leave when the police stormed in.
       District Attorney Schuyler Marvin claimed most of the store’s customers are truck drivers and people passing through, rather than locals. He said the store sells videos and magazines and has private booths for people to watch movies and entertain themselves.
       “That’s the kind of activity I believe crosses well beyond the obscenity line,” Marvin said regarding the booths.
       “There’s every type of deviant sexual behavior in there,” said Trooper Doug Pierrelee, spokesman for state police Troop G. However, what one community considers obscene, another might not, he said.
       Officials reportedly hope to prove to the Grand Jury that the store violates state obscenity laws.
From the Associated Press, 4/13/05
http://www.timesdaily.com/apps/pbcs.dll/article?AID=/20050413/APN/504130570
And from KTBS-TV News. 4/12/04
http://www.ktbs.com/news-detail.html?cityid=1&hid=25990
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ANDREA DWORKIN DIES
NEW YORK, NY­Radical-Feminist writer Andrea Dworkin is dead at 58. She had been ill for several years.
        Dworkin crusaded against adult entertainment all her life. But for that matter she also wrote against romantic love, marriage, and generally anything she saw as a part of an historical and ongoing subjugation of women by men. And she saw a lot of things that way. As an intellectual she was always on the radical fringe but she contributed more than a few insights to feminism.
        Dworkin became seriously dangerous to the First Amendment in the Eighties when she teamed up with law professor Catherine MacKinnon to promote a legal strategy that would have defined adult entertainment as a violation of women’s civil rights, thereby allowing women to sue for damages. That concept very nearly became federal law and in fact was adopted as a city ordinance (Indianapolis) only to be struck down by the courts as unconstitutional. The idea was partially incorporated into Canadian law, however.
        Dworkin was easily and often lampooned as a man hater (she denied that) and prude. She once sued Hustler Magazine for running sexually explicit caricatures using her name. However, because she was a public figure, courts ruled the cartoons were protected speech. The courts had it right. Dworkin had already made herself into a caricature without needing any help from Hustler.
From The Associated Press, 4/12/05
http://www.chron.com/cs/CDA/ssistory.mpl/nation/3130848
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ACLU TESTIFIES AGAINST DANCE CLUB TAX
       CARSON CITY, NV -- ACLU of Nevada General Counsel Allen Lichtenstein, testifying recently before the state Senate Taxation Committee, said that a bill by Senator Dina Titus (SB 247), which would impose a 10 percent tax on exotic dance clubs, is unconstitutional.
       “This bill is way off base from a constitutional standpoint,” said Lichtenstein. The courts have determined that exotic dancing is constitutionally protected free expression, he said. While dance clubs can be required to pay a general tax like other businesses, they cannot be singled out for a special tax just because people do not like them, he said.
      “I don’t know why the constitution should be a problem,” said Titus (D-Las Vegas). She said that the tax has been imposed for many years on live entertainment in casinos and that she wants to levy the same tax on exotic dance clubs.
From Ed Vogel, Las Vegas Review-Journal, 4/13/05
http://www.reviewjournal.com/lvrj_home/2005/
Apr-13-Wed-2005/news/26279358.html
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IDENTITY THEFT BY COP
       MIAMI COUNTY, OH -- Is this a case of identity theft? You be the judge. Ohio liquor-control agents and police paid 22-year-old University of Dayton criminal-justice student Michelle Szuhay $100 a night to dance nude in an exotic dance club. News accounts do not reveal whether Szuhay also got to keep her tips, but her gig lasted three months, during which time liquor-control officers drank beer and watched from the audience.
       As a part of the sting, which eventually resulted in some misdemeanor charges, Szuhay pretended to be one Haley Dawson. She was provided with a driver’s license and social security number belonging to Dawson, who knew nothing about the cops using her name or ID and has never been an exotic dancer.
       In the meantime, other officers watched “Dawson”/Szuhay dance nude on the Internet, using an account created under the identity of a dead man.
       No complaints have been heard from the dead guy, but Dawson’s father says using his daughter’s name certainly looks like identity theft to him.
       But it’s not, argues Miami County Prosecutor Gary Nasal. Pointing to a 2002 change in an Ohio law aimed at fighting identity theft, Nasal said police are allowed to assume anyone’s identity as long as it’s part of an investigation.
       Ohio Rep. Jim Hughes, the Columbus Republican who sponsored the change, disagrees with Nasal, as does the ACLU.
       “It was not intended for that, I can tell you that,” Hughes said
From a summary in Politic Digest
politech@politechbot.com
Based on a story in The Columbus Dispatch, 4/10/05 (Subscription required)
http://www.dispatch.com/news-story.php?story=
dispatch/2005/04/10/20050410-A1-02.html
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IDENTITY THEFT BY COP
       MIAMI COUNTY, OH -- Is this a case of identity theft? You be the judge. Ohio liquor-control agents and police paid 22-year-old University of Dayton criminal-justice student Michelle Szuhay $100 a night to dance nude in an exotic dance club. News accounts do not reveal whether Szuhay also got to keep her tips, but her gig lasted three months, during which time liquor-control officers drank beer and watched from the audience.
       As a part of the sting, which eventually resulted in some misdemeanor charges, Szuhay pretended to be one Haley Dawson. She was provided with a driver’s license and social security number belonging to Dawson, who knew nothing about the cops using her name or ID and has never been an exotic dancer.
       In the meantime, other officers watched “Dawson”/Szuhay dance nude on the Internet, using an account created under the identity of a dead man.
       No complaints have been heard from the dead guy, but Dawson’s father says using his daughter’s name certainly looks like identity theft to him.
       But it’s not, argues Miami County Prosecutor Gary Nasal. Pointing to a 2002 change in an Ohio law aimed at fighting identity theft, Nasal said police are allowed to assume anyone’s identity as long as it’s part of an investigation.
       Ohio Rep. Jim Hughes, the Columbus Republican who sponsored the change, disagrees with Nasal, as does the ACLU.
       “It was not intended for that, I can tell you that,” Hughes said.
From Beth Piskora, Business Week, 3/28/05
http://www.businessweek.com/investor/content/mar2005/pi20050325_6141_pi050.htm

UpComing Events

APR 18-19 – Celebrate Free Speech Lobbying Days, Sacramento, CA, 800-476-7813

MAY 1 – Adult Con 8, Los Angeles Convention Center, www.adultcon.com

MAY 19-21 --  Erotic Expo., Hotel Pennsylvania, N.Y., NY www.Eroticexpony.com

JUNE 6-10 -- Lifestyles 2005, Las Vegas, NV, www.lifestyles-conventions.com

JUNE 10-12 -- Erotica L.A., www.adultconx.com


JUNE 12-15 -- Cybernet Expo, Shelter Point Hotel, San Diego, CA, www.cybernetexpo.com

JULY 11-13 – ANME, Mandalay Bay, Vas Vegas, NV

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JULY 26-28, -- VSDA's Home Entertainment 2005, Bellagio Resort, Las Vegas, NV, http://show.vsdahomeentertainment.com

AUG 5-6 – Internext, Hollywood, FL., www.Internext-expo.com