Page 12 - AVN April 2017

EDITORS DESK
EDITOR’S DESK | By Sharan Street
SOBs, FIGHT ON!
Protecting the pursuit of sexual happiness
automation and local shopping districts are
eroding as more consumers buy primarily
In an economy where jobs are being lost to
an impermissible burden on this right. Alabama
responds that the statute exercises a time-honored
use of state police power—restricting the sale of
online, one would think that a small town
sex. We are compelled to agree with Alabama and
would value any retail establishment that draws
must decline the ACLU’s invitation.”
in foot traffic and contributes to local sales tax
Across many parts of the country, the “time-
revenue.
honored use of state police power” continues
But what happens when that establishment
to hold sway over what are called “sexually
helps its clientele achieve sexual satisfaction?
oriented businesses.” But thanks to the ACLU,
In larger and more diverse municipalities, that’s
municipalities are forced to at least consider
no problem. But in some regions of the country,
whether their ordinances violate basic rights—
citizens may find they do not have the right to
such as the right to free speech, which is explicitly
purchase what were once called “marital aids” in
included in the U.S. Constitution. Take a March 15
their own communities.
a story in the Star Beacon, based in Ashtabula, Ohio,
While owning a vibrator may seem like a key
which reported that officials had adopted a zoning
component to “life, liberty and the pursuit of
ordinance to relegate adult businesses to small
happiness” (that well-worn phrase from the United
pockets of the Williamsfield township. According
States Declaration of Independence), others do not
to the Star Beacon, “Zoning officials said off-handed
hold that truth “to be self-evident.”
remarks from a business owner about starting an
Many of the core legal battles in this arena have
adult business in the small township ... prompted
been fought on the grounds of the right to privacy.
them to strengthen their zoning regulations.” The
Even though the Constitution does not explicitly
zoning now allows only two possible locations for
include the right to privacy, Supreme Court rulings
adult businesses.
have found that it implicitly grants a right to
The Star Beacon quoted one official who said,
privacy against governmental intrusion in the First,
“Some felt we ought have been able to zone it out
Third, Fourth, Fifth and Fourteenth amendments.
of the township all together” but added, “an adult
However, since strict constructionists argue the
entertainment establishment would be protected as
right to privacy does not exist, that sets the stage
free speech under the First Amendment.”
for more conservative courts to rule against the
Zoning ordinances have long been tool used by
right to sexual privacy.
officials to bludgeon sexually oriented businesses.
And rule against it they do.
And one shrewd lawyer has turned this legal game
For instance, though it plans to hold an en banc
into a highly lucrative enterprise.
rehearing on the ruling, the 11th U.S. Circuit
In a March 13 story, the Brookhaven Post news
Court of Appeals last year upheld a 12-year-
site carried this headline: “Legal tab in Brookhaven
old case involving the city of Sandy Springs, a
‘sexual device shop’ case swells to $300K.” The
suburb of Atlanta, which in May 2004 enacted an
story detailed a four-year-old legal battle between
ordinance forbidding the open display of sex toys
the town of Brookhaven, located in the Atlanta
in retail establishments and demanded a doctor’s
’burbs, and Stardust, a local boutique. The story
prescription to purchase them.
noted that $294,004 of that total had gone to
For those who say, “WTF,” this action is far
Scott D. Bergthold, “who essentially single-
from unprecedented. In upholding Sandy Springs’
handedly” wrote Brookhaven’s ordinance. So, the
action, the 11th Circuit appeals court ruled based
Chattanooga-based lawyer consults with cities on
on Williams v. Attorney General of Alabama, saying
restricting SOBs and then further enriches himself
that holding took precedence. That court battle,
when those businesses try to assert their right
which began in 1998, should interest anyone in
to provide services that local consumers clearly
the business of selling pleasure products. A month
want—and are willing to pay for. Instead, their tax
after an Alabama statute restricting the sale of sex
dollars are lining Bergthold’s pockets.
toys took effect, the American Civil Liberties Union
If you’re a retailer in a small town, who is there
filed suit on behalf of various users and vendors of
to protect you from the likes of Scott Bergthold?
sexual devices, one of them being Sherri Williams,
When push comes to legal shove, look for support
a store owner in Alabama. The ACLU argued that
from organizations that have unwaveringly
the statute violated sexual-device users’ right
supported the rights of all Americans, whether they
to privacy and personal autonomy under the
be freedom of speech or the more elusive right to
Fourteenth Amendment. (For more on Williams,
privacy.
go to RightsToOurPrivates.com.)
Chief among these is the ACLU, which has
In 2004, in Williams VI (the fourth go-round
played a major role in many Supreme Court
in court), the ACLU did not prevail. The 11th
victories that expanded the rights of Americans to
Circuit’s Stanley F. Birch Jr. offered this telling
privacy in the bedroom, including Lawrence v. Texas
summary, noting that the ACLU “invites us to add
(2003), Eisenstadt v. Baird (1972) and Griswold v.
a new right to the current catalogue of fundamental
Connecticut (1965). The battle to add the pursuit
rights under the Constitution: a right to sexual
of sexual happiness to our basic rights is far from
privacy. It further asks us to declare Alabama’s
over. And you SOBs [sexually oriented businesses]
statute prohibiting the sale of ‘sex toys’ to be
are a key component of the fighting forces.
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