O'NEIL, Fla. - Outgoing Nassau County Commissioner Marianne Marshall apparently hopes to leave behind a legacy that will guarantee free speech suppression for years to come - but First Amendment advocate Lawrence G. Walters won't be making it easy for her.
Marshall's the driving force behind a new proposed county ordinance that would outlaw the sale of any sexually explicit material that, among other characteristics, depicts "multiple penetration by multiple partners of body orifices"; "visible penetration during intercourse, sodomy, or oral sodomy"; "visible ejaculation, urination, menstruation, bowel movements, ejaculate or feces"; and "visible penetration of a bodily orifice with a digit, hand, foot, or inanimate object."
Trouble is, some or all of those characteristics can be found in every sexually explicit movie produced in the U.S., so what the ordinance does is effectively prohibit any XXX product from being sold anywhere in the county.
"What they've tried to do is create a new category of unprotected speech which, as we know from recent Supreme Court precedent in the Free Speech Coalition case, that cannot be done," Walters told AVN. "They [Congress] tried to create this category of virtual child pornography that modified the Miller test and left out a couple of the provisions, and the Court didn't like that much, and it would be the same kind of thing here. The ordinance does raise some interesting issues based on the fact that it would allow individuals and groups to sue - it's not a criminal ordinance per se, but it does impose some sort of penalties, thousand-dollar penalties that could be considered quasi-criminal, so there will be some new issues for the Court to consider, but in terms of just carving out an entire category of otherwise protected speech and subjecting it to these quasi-criminal provisions, I don't think that would ever fly."
Indeed, the proposed ordinance states, "The purpose of this Ordinance is to afford the citizens of Nassau County a civil remedy to enjoin the distribution of pornographic materials for profit and commercial purposes within the community, and to recover civil penalties and damages. Further, this Ordinance shall provide these remedies to any church or religious organization, or other representative group of organization."
The specific mention of "any church or religious organization" recalled for Walters the fight he went through nearly five years ago, when his client Adam & Eve first attempted to open O'Neil's first (and, even up to today, only) sexy boutique on Route A1A. Although the county had no adult zoning ordinance at the time, when word got out what type of store was being built, local clergy and pro-censorship groups went crazy and crowded into the public hearings on the issue.
"It was a nasty situation," Walters remembered. "I was actually physically threatened by these 'militant Christians,' as they identified themselves at the public hearing. It was the first time we were ever prayed against at a public hearing: 'Lord Jesus, cast out these serpents and rid them from our community.'"
But even though the county hurriedly passed a highly restrictive adult zoning ordinance, the store, which under the law had to be grandfathered in, opened on schedule, and to this date, there has been not one single police complaint arising from the conduct of customers in or around the store.
Not that that matters to the drafters of the proposed ordinance.
"Any person, firm, corporation, association, or entity, or any agent or employee of the foregoing, who willfully and knowingly distributes for profit or other commercial use pornographic materials, within the state, is liable for a civil penalty of not more than $1,000 for each such violation," the ordinance declares. "Willful violations occur when the person knew or should have known that the content of the material constitutes pornography as described in this ordinance. A violation shall occur upon each paid distribution or sale. This civil penalty may be recovered in any action brought under this part."
"The fact that they're talking about banning commercial pornography and identify it as a nuisance, is just amazing to us," Walters said. "And they're going to allow church groups to sue to get damages against anybody who dares to distribute commercial pornography in the county - in fact, they're trying to regulate the whole state; the distribution cannot occur anywhere in the state - I don't see how anyone connected with the Board who has a working knowledge of the law could allow this to pass."
Indeed, there have already been some rumblings about the ordinance's constitutionality.
"I do think we'd get sued," County Attorney David A. Hallman told the county commission at its Aug. 15 meeting. "I think we'd get taken to federal court."
Walters, however, wasn't present at that meeting.
"I didn't find out about it until after it had been reported in the paper. They didn't favor me with an invitation," he chuckled.
"It's not a zoning ordinance, so it doesn't have to go through the whole quarter page ad like these other ordinances that we see," he continued. "I've asked for the proof of publication and so forth, and I haven't received those yet, so who knows whether they did or not? We'll look into all those things in the event they're crazy enough to pass it."
The ordinance is an odd mixture of criminal and civil law. For instance, it provides that, "[i]n addition to the County Attorney, and the State Attorney's Office, any citizen, or any church or religious organization, or other representative group or organization within this state, may bring an action in the circuit court to enforce the provisions of this act. Factual determinations as to whether or not material or works constitute pornography shall lie exclusively with a jury, subject to subsequent judicial review to the Florida Rules of Civil Procedure. Civil penalties shall be assessed by and at the discretion of the circuit court, with due regard for the purpose of this act and the nature of its offense."
However, since "pornography" is considered to be First Amendment-protected expression unless and until a judge or jury finds it to be obscene in a criminal action against one or more defendants, it's unclear what power a civil jury would have to ban essentially all porn from sale within the county (much less the entire state).
But don't worry: "It is the intention of the Nassau County Board of County Commissioners to preserve, protect, and foster protected free speech, and to minimize the costs associated with defending a multiplicity of suits brought under this act."
Good news, right? Well, not quite:
"In order to insure that the application and enforcement of this act is consistent with that intent, upon application by either party, the courts of this state shall stay any subsequently filed suit(s) in this state, involving the same defendant(s), pending a final determination. In any action brought under this section, upon motion of the party against whom such action is filed alleging that the action is frivolous, without legal or factual merit, or brought for the purpose of harassment, the court may, after hearing evidence as to the necessity therefore, and after review of the alleged pornographic materials, require the party instituting the action to post a bond, in an amount not to exceed $10,000, which the court finds reasonable to indemnify the defendant for any damages incurred, including reasonable attorney's fees."
In other words, after the first lawsuit against this ordinance is filed, any other adult retailer who attempts to sue the county for its application of this ordinance will automatically have his/her suit delayed pending the outcome of that first lawsuit - and if a judge, in reviewing any of those lawsuits, determines that a particular suit is without merit or has been brought in an attempt to "harass" the county into ceasing enforcement of the ordinance, that judge can require the plaintiff(s) to post a $10,000 bond to cover the county's costs in defending the suit. And of course, since the ordinance outlaws all sexually explicit material, any lawsuit by a retailer who claimed that his/her material wasn't subject to the ordinance would automatically be considered frivolous, triggering the $10,000 bond requirement.
Worse, the ordinance gives a judge the power to grant a temporary restraining order to anyone who sues an adult business under the ordinance, preventing that retailer from selling the material complained of. Talk about guilty until proven innocent!
It's clauses like that that caused Walters to exclaim, "It feels like I'm an old campaigner fighting the same war over and over again; like I'm in some kind of Dante's Inferno!"
The ordinance's author projects that it will go into effect on Jan. 1, 2009, which would mean that the county will have to hold further public hearings on the ordinance soon.
"This one could certainly be in effect by January 1 if they noticed a hearing for sometime in the next month, even," Walters assessed. "But if they intend to get this thing done in time for the proposed effective date, they need to move on it. But we have our antennae out and we'll be there for the next one."
Pictured: Lawrence Walters