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NM Supreme Court Strikes Down Fine for Adult Movie Festival

NM Supreme Court Strikes Down Fine for Adult Movie Festival

ALBUQUERQUE, NM—The Guild Theater is an art house cinema located at 3405 Central Avenue Northeast in the Nob Hill section of town, on what might be described as one of the "main drags" through the center of the city. Its eclectic fare includes many films in keeping with the area's "psychedelic" history—an LSD-powered ashram was located in Taos, north of the city, in the '60s, while to the south lies the famous town of Roswell, where a UFO allegedly crashed in 1947—such as the upcoming Ain't Them Bodies Saints and Crystal Fairy & the Magical Cactus, as well as documentaries like The Big Picture: Rethinking Dyslexia and Harvest of Empire. The theater will even be showing Lovelace at the end of the month.

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But once a year, starting in 2007, the Guild opens its doors to adult fare, in a one-day festival known as Pornotopia, which was sponsored by the Self Serve Sexuality Resource Center, a local women-owned adult boutique and meeting place. While it hasn't been reported what was shown in 2007, the 2008 showing of Couch Surfers: Trans Men in Action and other hardcore features brought zoning inspectors to the theater, and resulted in a $500 fine for violating Albuquerque's adult zoning ordinance.

Though the festival continued for another year, Self Serve and the owners of the Guild Theater, Pangaea Cinema, enlisted the help of the ACLU of New Mexico to fight the levy and to establish their right to continue showing adult movies once a year—and they won!

"The Nob Hill Business Association described the event as 'a success, not only in driving [customer] traffic to the area, but also in the quality and caliber of those customers'," began Justice Edward L. Chavez of the New Mexico Supreme Court in explaining the decision, published on September 12, to overturn the fine. "The Association specifically noted that there were 'almost no negative comments' and that it hoped the film festival would continue to present the festival. Several local business owners stated that the festival had positive effects on the neighborhood, including increased sales and broader public awareness of the businesses in the area. The festival did not cause any crime or other negative effects in the neighborhood."

According to the Supreme Court opinion, "An 'adult amusement establishment' is defined in the Albuquerque Code of Ordinances as '[a]n establishment such as [a] ... theater ... that provides amusement or entertainment featuring ... films, motion pictures ... or other visual representations or recordings characterized or distinguished by an emphasis on ... specified anatomical areas or ... specified sexual activities," and there's little doubt that what was shown at Pornotopia in 2008 generally fit that content description.

However, the court went on to note that, in line with U.S. Supreme Court decisions in Young v. American Mini Theatres and Renton v. Playtime Theatres, the reason that an "adult entertainment establishment" may be zoned out of the "Community Commercial" (C-2) zone where the Guild is located (and subject to a fine if it does do business there) can't be the content of what was shown at the theater, but rather the "secondary effects" that supposedly flow from the business' presence in that zone. A footnote in the decision notes that famous First Amendment attorney Lawrence Tribe called such censorship "erogenous zoning."

"The parties agree that the Guild theater shows adult films only rarely, at most one weekend per year," the court noted. "Consistent with that reality, the Guild is an ordinary-looking art-house theater. It has none of the trappings of an adult theater; there are no neon signs proclaiming 'Girls! Girls! Girls!' or 'XXX.' Nothing about the Guild appears to be seedy, unsavory, or likely to drive down property values. It is undisputed that Pornotopia did not, in fact, result in any negative secondary effects in the Nob Hill neighborhood. In short, while the City of Albuquerque may believe that adult theaters cause negative secondary effects, the Guild is not an adult theater either in function or appearance."

Indeed, another statement in Justice Chavez's opinion (in which three other justices concurred) may lay the foundation for other adult business zoning challenges in the city: "It is not clear precisely which secondary effects Albuquerque fears will result from the presence of adult amusement establishments; the ordinance does not include legislative findings, and the City’s briefing did not specify the evidence on which the Albuquerque City Council relied in enacting the ordinance."

But the court's decision supplied an answer for that as well.

"The City voiced concern that if the Guild prevails, more theaters in areas that are not zoned for adult amusement establishments will 'show adult entertainment on a routine but not constant basis' to avoid the bite of the zoning ordinances," the court stated. "If Albuquerque is concerned that mainstream theaters will start showing adult entertainment three days per week, as it claims in its brief, the City Council can amend the ordinance to set a threshold level of adult amusement material that would classify a business as an 'adult amusement establishment.' In the case of a movie theater, this classification could be based on the proportion of the theater's films that are pornographic, the number of such films shown per week or month, the nature of the films that receive top billing, or the percentage of revenues attributable to sexually explicit fare... However, if the City Council wishes to expand the ordinance so that rare, occasional, or incidental exhibitions of adult material will render a business an 'adult amusement establishment,' it must produce some evidence linking these occasional showings to negative secondary effects."

The main point, however, is that the high court's majority found that one porn day a year does not an "adult amusement establishment" make.

"Because the Guild engaged in only occasional showings of adult films, the Guild is not an adult amusement establishment as defined in the Albuquerque Code of Ordinances, and the zoning rules governing adult amusement establishments are inapplicable to it," the court's majority concluded. "We therefore reverse the Court of Appeals and vacate the Guild’s conviction."

"Pornotopia Film Festival won!" exclaimed Molly Adler for Self Serve Sexuality Resource Center. "The NM State Supreme Court decided in a 4-1 decision that The Guild Cinema and Self Serve Sexuality Resource Center have a right to host Pornotopia Film Festival. The court was clear: hosting one erotic film festival, on one weekend of the year does not make the Guild an 'adult amusement establishment,' just like a club that plays jazz music once a year would not become a 'jazz club.' This ruling guarantees that Self Serve and The Guild Cinema can carry out their festival without fearing that free speech will be abridged.  Self Serve is already planning the next 'Pornotopia Uncensored' festival."

"Despite its controversy, Pornotopia has received overwhelming community support for being a festival whose aim is to change the way people see sexuality portrayed in film," added Self Serve co-owner and director Matie Fricker. "Much like the environment at our shop Self Serve, Pornotopia featured films promoting a positive, educational and empowering erotic experience."

The New Mexico Supreme Court's ruling can be found here.






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