Page 32 - AVN May 2016

LEGALESE | | By Clyde DeWitt
Risk of Seizures
Not everything is protected by the First Amendment
boutiques
”The love
tend to stock
whatever
products will
drive sales,
materially none
of which are
protected by the
1st Amendment.
That has led to
some of the
mass seizures of
which you may
have heard.
LEGAL NEWS
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.
Many years ago, the Supreme Court of the
United States firmly established that mass
seizures of sexually oriented magazines
(demonstrating how long ago this was)
were a no-no. In two cases—Marcus v.
Search Warrants, 367 U.S. 717 (1961) and
A Quantity of Books v. Kansas, 378 U.S. 205
(1965)—the police seized thousands of
magazines before the vendor was given a
chance to go to court and weigh in on the
issue of obscenity. As a result, for example,
when the federal government initiated all
of those federal obscenity cases in the late
’80s and early ’90s, the search warrants all
ordered the seizure of only three copies of
each of the target movies. Although not
all local governments are so familiar with
Marcus and Quantity, mass seizures from
adult bookstores haven’t been in the news
in quite a while.
However, much has changed since then,
particularly the character of retail inventory
at adult retail outlets. Media items have
become a sideline.
The weapon du jour against adult
businesses back in the ’60s and ’70s was
seriatim obscenity busts. Police mentality
was a residue from the prohibition era,
when the cops would bust into an illegal
still with axes and execute what you might consider summary forfeiture of the
booze. That worked then because of the Volstead Act outlawed the possession
of alcohol everywhere in the United States. It is now the same procedure with
respect to illegal drugs. If something is illegal per se, like cocaine, it can be
summarily seized—all of it.
Magazines are different, as are motion pictures, books and other expressive
materials. They are not illegal unless obscene—and obscenity depends upon
current, local community standards. They also are presumptively protected by the
First Amendment. That is what brought about Marcus and Quantity.
Much has evolved. Back then, much of the impetus supporting busts of adult
retail outlets arose from the eyesore factor. People were understandably miffed
about their children walking home from school past a yellow and black building
adorned by a “Mr. Peepers’ Glory Hole” sign. Thus the late ’70s and the ’80s
brought zoning ordinances that were designed to keep such places out of sight
along with the exploding adult videotape industry, which softened attitudes—at
least some—about sexually explicit fare.
The standard adult bookstore remained what it was—retail in the front and
video booths in the back—for many years, until the internet. But when the
first decade of this millennium brought internet insta-porn, there evolved a sea
change in adult retail. The evolution gradually rendered “couples stores” or “love
boutiques” a better business model.
Over time, the inventory of media materials became a sideline of adult retail.
The focus turned to sexy lingerie, shoes, sex paraphernalia and other, non-
communicative items. And while these businesses have gained acceptance, there
remains a very vocal minority professing that sex should be confined to the marital
bedroom for the limited purpose of procreation (although the behavior of some of
the politicians trumpeting those views certainly calls their sincerity into question).
The love boutiques tend to stock whatever products will drive sales, materially
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