Page 38 - AVN June 2012

LEGALESE | By Clyde DeWitt
Is There a Magic Bullet? In search of a solution to cut through a thicket of regulations
Clyde DeWitt is a Las Vegas and Los Angeles
attorney, whose practice has been focused on
adult entertainment since 1980. He can be
reached at ClydeDeWitt@earthlink.net. More
information can be found at ClydeDeWitt.com.
This column is not a substitute for personal
legal advice. Rather, it is to alert readers to
legal issues warranting advice from your
personal attorney.
If you are going into
the porn business,
one of the costs of
doing business will
be fighting the
government.
”
LEGAL NEWS
Beginning in the 1970s and through the 1980s, local governments changed their
attack strategy against brick-and-mortar adult businesses from obscenity
prosecutions to zoning and operational regulations. The reason for that
evolution was a combination of the burden upon the criminal justice system
occasioned by obscenity prosecutions, their dwindling success and, most
important, the fact that they did not accomplish the local governments’ real
objective, which was to get porn out of everyone’s backyards—the NIMBY
thing (Not In My Back Yard).
The reason for the use of obscenity laws as a weapon was that cops were doing
what they knew how to do—bust people. Going back to the ’50s, they even
brought obscenity prosecutions against exotic dancers for disrobing too much
or gyrations that were a little too sexy for the cops’ taste. After all, going back to
Prohibition, the sole approach to “sin” was in the criminal justice system.
Detroit stumbled upon the secondary-effects approach in the late 1960s with
its anti-skid-row ordinance, prohibiting too many bars, pool halls, second-hand
stores, pawn shops and other perceived “low-life” businesses in the same area. It
was nothing more than a zoning ordinance. Think about it: Zoning/planning
ordinances are entirely designed to combat secondary effects of development.
For example, commercial businesses cause congestion; so they do not allow
them in residential zones. Industrial uses make noise and are unsightly; so they
put them in their own area. Buildings must be set back from the street so that
downtown streets do not look like canyons.
Probably having no idea of its potential, Detroit added adult retail businesses
to the list of blight-causing businesses around 1970; and a fractured Supreme
Court approved the idea in 1976, based in large part
upon a then-ill-defined concept of secondary effects.
The detractors took that concept from the simple
idea of zoning to all of the regulations that now
wreak havoc on sexually oriented retail businesses:
prohibitions against enclosed viewing booths, hours-
of-operation limits, separation requirements between
strippers and customers, and many more.
Since the Supreme Court’s 1986 Renton decision,
there has never been a First Amendment Lawyers
Association meeting at which “secondary effects” has
not been a centerpiece topic, nor does anyone foresee
one. (FALA meets twice a year.) Notwithstanding the
fact that FALA is as impressive a group of attorneys as
you can imagine, nobody there ever has suggested a
magic bullet because there never will be one.
The secondary-effects war—with the FALA flanked
on one side and the “community values” folks on the
other—is just that: a war. Like all wars, it consists of a
series of battles. The adult industry wins some of the
battles but it loses many more. It is very frustrating—
take it from one of the soldiers.
There are two important observations about this
war that you need to keep in mind.
First, this is a war that never will end. It has been
fought since Johannes Gensfleisch zur Laden zum
Gutenberg invented the printing press some 600 years
ago. Fighting battles in this war is the cost of
engaging in controversial speech ... and it always has
been. If you are going into the porn business, one of
the costs of doing business will be fighting the
government.
Second is that you must be selective in choosing
which battles to fight. Every lawyer who deals in this
can tell you of the client who came in announcing
the purchase of a building, only to later find out that
it is situated in an overlay zone that prohibits adult
entertainment. She should have asked the lawyer first!
Worse is the situation where the client comes in with
a criminal citation, foreclosing any federal-court
challenge to the underlying ordinance—and
realistically foreclosing any challenge at all.
The battles in this war will continue, but neither
side can be expected to invent an A-bomb that will
end this war like World War II. Each side will invent
new weapons—different experts, new theories, etc.—
but the war will not end. The front will just move
back and forth.
What will control how far the front moves and in
which direction? Politics! A Republican president this
next term, coupled with a Republican Senate, could
substantially sway the Supreme Court in the wrong
direction. If there is one or more vacancies on the
Supreme Court during the next four years, the odds
are that it will not be from a conservative. Thus, the
Court in the next four years is likely to either remain
where it is or move to the right, depending upon the
occupants of the White House and the Senate. Keep
that in mind this fall!
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