COWETA COUNTY, Ga.—Scott D. Bergthold is probably the best-known name in anti-adult business litigation in the U.S. From his bases in Chattanooga, Tenn., and Scottsdale, Ariz., he flies all over the country, "helping" cities draft anti-adult ordinances—when they're described as "boilerplate," rest assured Bergthold is the boiler—and fighting for those ordinances when they're challenged in court. He's the founder of the Arizona-based pro-censorship legal group Community Defense Counsel and may still be in charge of it—its website doesn't say—though its duties appear to have been subsumed by Alan Sears' Alliance Defense Fund.
That Bergthold has an agenda to prevent adult businesses from opening anywhere in the country is beyond question. According to a puff piece posted on the BusinessTN website, Bergthold, the graduate of an unidentified "Christian law school in Virginia"—the choices are the late Jerry Falwell's Liberty University or Pat Robertson's Regent University—has written some 200 anti-sexually oriented business (SOB) ordinances for municipalities across the country, and claims to have won 13 of his last 16 appellate court cases.
"Regardless the ultimate agenda of his clients, Bergthold's goal is simple: to draft bulletproof regulations," the article concludes. "And on that count, his work has resulted in more than one sorry SOB."
However, Bergthold's latest case, where he's been hired to represent Coweta County against adult retail chain Starship, which is seeking to open a new location at Thomas Crossroads, has been mired in controversy from the beginning—and remains closed at this writing.
"This is a business license application in which Starship did everything right," said attorney Alan Begner, whose firm represents the retailer. "We gave them full disclosure of everything we wanted to do, and we gave them an inventory that said sex toys will be sold at this store, because we had to limit our store to 25 percent floor space and inventory. That's the local ordinance."
"We had had a meeting with the country manager, the business license director and the county attorney," Begner continued, "and they said, 'Okay, we want you to go ahead and stock your store first so we can see whether you're going to limit it to the 25 percent,' which we didn't appreciate having to do but we agreed to it. So we had a meeting to do the inspection on about Jan. 15, 2009, but they never showed up at the meeting or called us. Instead, the day before, Bergthold called an emergency meeting of the Board of Commissioners and they passed a law that created a Georgia-like obscenity ordinance with the change in it that didn't prohibit advertising, and also a law that reconfigured and narrowed what the 25 percent is. I wrote the Board of Commissioners back, saying we would comply with it and challenge it at the same time; 'now give us our license.'"
Georgia doesn't currently have a state obscenity law, thanks to some excellent work by Atlanta First Amendment attorney Cary Wiggins, who represented This, That and the Other Gift and Tobacco, Inc. ("This That") against Cobb County, Ga. Seems that Georgia's obscenity statute, O.G.C.A. §16-12-80, prohibited retailers from, among other actions, advertising their stock of devices "designed or marketed as useful primarily for the stimulation of human genital organs"—i.e., dildos—even though the statute contained an exception allowing those who had an educational or medical need for the gadgets to buy them.
When the case came before the Eleventh Circuit Court of Appeals originally in 2002, that panel overturned the district court's ruling that Georgia's obscenity law did not violate the protections for commercial speech as defined by the 1980 U.S. Supreme Court case, Central Hudson Gas & Elec. Corp. v. Public Service Commission. The Supreme Court held in that case that such commercial speech is protected if it "concerns lawful activity and is not misleading," while the government must demonstrate that the regulation in question "serves a substantial governmental interest," that it "directly and materially advances the state's asserted interest," and that the regulation is "no more extensive than necessary to serve that interest."
The appeals court found that since This That's advertising could be aimed at those who could lawfully purchase the devices, it passed the Central Hudson test in that it was not misleading, and that the government had failed to show that the statute's complete ban on advertising the devices was not "more extensive than necessary" and therefore violated This That's First Amendment rights. The Sixth Circuit then remanded the case to the district court for reconsideration in light of the new ruling.
However, the district court again found against plaintiff This That, ruling that the word "advertises" could be stricken from §16-12-80, leaving the remaining prohibitions against distributing obscene materials intact. This That had argued that it was not simply the word "advertises" that created the problem with the statute; it was the fact that remaining prohibited actions like "publishing" or "exhibiting" such materials would effectively prevent the store from advertising the devices even with the direct ban on advertising having been removed from the statute.
The Sixth Circuit agreed, ruling in 2006 that under the "law of the case" doctrine, the district court was barred from relitigating issues that had been decided in the earlier Sixth Circuit decision, "either explicitly or by necessary implication." According to its final decision in the case, the Sixth Circuit panel stated that the prior panel of the appellate court had determined, "at least by implication... that §16-12-80 could not be saved by giving the statute the more limiting construction used by the district court." This meant that the whole of Georgia's obscenity statute had been struck down, as noted also in a footnote to the 2006 decision, which stated in pertinent part, "All we conclude is that the district court, and this Court, are bound by our prior panel's conclusion that, as written, §16-12-80 is more extensive than necessary and violates the plaintiffs’ First Amendment rights to commercial speech." It also invited the Georgia legislature to enact another obscenity statute, which to date, it has not.
One effect of the appeals court ruling was that sexual devices were no longer illegal in the state—but that's not what Bergthold told the Coweta County Business Occupation Tax Rate Review and Appeals Committee when it met to consider Starship's appeal of its denial of a building permit.
Instead, Bergthold referred the committee, which was sitting without the benefit of an attorney of its own, to an earlier case, Chamblee Visuals v. City of Chamblee, where the Georgia Supreme Court ruled that a city could deny a business's application for a building permit if the premises "would be used for an unlawful purpose"—in that case, the sale of sex toys.
One trouble, though: The Chamblee Visuals decision was in 1998, when §16-12-80 was still the law. But with the statute having been overturned in 2006, neither the Chamblee decision nor Coweta's hastily-passed anti-obscenity ordinance could have been applied to Starship's intended sale of sex toys—but that's what Bergthold argued to the Business Occupation Tax Rate Review and Appeals Committee anyway.
"The argument was made that this [the This That case] did not strike the Georgia obscenity law," Begner told the Times-Herald newspaper. "The committee had no lawyer there. And it was flailing in its attempt to know whether Mr. Bergthold or I were correct."
It was for that reason that Begner and partner Cory Begner filed objections to Bergthold being granted temporary admission to the Georgia bar in order to represent Coweta County against Starship "pro hac vice."
"On April 13, 2009, Mr. Bergthold, with intent to mislead the appeals committee, and, in turn, the board of commissioners, intentionally and erroneously argued that the holding in Chamblee Visuals ... could be applied to the facts" of the Coweta case," the Begners stated in court filings. They further objected to Bergthold having argued that the facts of Chamblee Visuals and the Coweta case are "legally analogous, while intentionally omitting key facts that distinguish the two cases, with intent to mislead the appeals committee, and, in turn, the board of commissioners... Mr. Bergthold's intentional and repeated misrepresentation before the appeals committee, and, in turn, the board of commissioners, demonstrates a significant detriment to the proper, fair and efficient administration of justice."
Fast-forward to last Thursday, when Coweta Superior Court Judge Jack Kirby approved Bergthold's pro hac vice application, stating that he felt that Bergthold's statements to the Coweta Business Occupation Tax Rate Review and Appeals Committee were not intentionally misleading.
"What is important is whether or not you intentionally misled the committee... or whether you just didn't know," Kirby said. "I take your word. I'm satisfied that you just didn't know."
"Of course he should have known!" Begner countered. "But Bergthold was clearly hired to do the dirty work when there was no ground to deny us, and instead of just saying to the committee, 'You can't,' he misled everyone; the Board of Commissioners too, although they probably were happy he did, about how they could deny it, because we were going to sell sex toys that had newly been made illegal even after we'd agreed not to sell them while we challenged it [the new ordinance]. I was hoping this would be a knockout punch, but the judge did not kick him out."
So when the Superior Court holds its hearing on the merits of the Starship case on March 10, the Begners will be facing off against Bergthold. Fortunately for them, the law appears to be clearly on their side.