PORN WARS

Posted by Gilbert Levy | Feb 09, 2019 | 0 Comments

"It is a tale told by an idiot, full of sound and fury.  Signifying nothing."

- W. Shakespeare

In the 80's and early 90's, before the advent of the Internet, pornography was sold in what were then known as “adult bookstores”. Typically, these were small retail stores that sold videotapes and magazines. However, for these businesses, the real money makers were peep shows - movie booths containing coin operated viewing devices designed to accommodate a single patron. The litigation in those days involved constitutional challenges to local ordinances requiring the businesses to remove doors from peep show booths. Local governments were extremely concerned that patrons were engaging in self stimulation behind closed doors or in some cases assignations with other patrons. These ordinances were uniformly upheld by the courts. The businesses were required to remove doors from the booths or in some cases they were allowed to get by with half doors. In the end, nothing really changed.  Businesses took the doors of their booths or converted to retail only.  Cops stopped raiding the businesses and arresting customers.  Local governments stopped caring if people had fun in the booths.

In the mid 80's, the Washington State Legislature in its infinite wisdom decided that it was time to clamp down on "moral nuisances". Legislators enacted a statute containing criminal and civil penalties for businesses selling what was defined as “lewd matter”. Under the statue, the State, cities or counties could get a civil injunction shutting down the business and confiscating its property for selling lewd matter. The Moral Nuisance law also created the crime of “Promoting Pornography” which made selling “lewd matter” a Class C felony punishable by up to five years in prison. Promoting Pornography is also listed as a predicate crime for Leading a Criminal Organization which is a Class A felony. This meant you could get life in prison for selling porn.

The Moral Nuisance Law attempted to define “lewd matter” in a matter consistent with the United States Supreme Court's definition of obscenity. Obscenity was defined in the landmark decision Miller v. California. 413 U.S. 15 (1973). Under the Miller test, a work is obscene if (1) taken as a whole it appears to a prurient interest in sex according to contemporary community standards; (2) it constitutes a patently offensive depiction of sexual conduct according to contemporary community standards; (3) it has no serious literary, scientific, artistic or political value.

The problem was that the moral nuisance law had a special definition of the word “prurient”. It was defined as “tending to incite lasciviousness or lust”. That definition was declared unconstitutional by the U.S. Supreme Court in Brockett v. Spokane Arcade. 472 U.S. 491 (1985). The Court held that materials that appealed to a “normal healthy interest in sex” were protected by the First Amendment and that works could only be deemed to be prurient if they appealed to an “unhealthy, abnormal interest in sex”.

A moment's reflection will suggest how ridiculous this was. Jurys hearing charges of promoting pornography would be asked to decide whether a movie or magazine depicting people having sex appealed to an “unhealthy abnormal interest” according to contemporary community standards. In other words, the question was not whether individual jurors thought it was unhealthy and abnormal but whether the community at large thought that it was. The community in those days was defined as the “entire State of Washington”. So there was really no way that a rational juror could figure this out since people in Seattle might look at things much differently than people in Spokane or Yakima. The standard was meaningless and likely to result in unpredictable verdicts.

As it turned out, that is precisely what happened. In the late 80's there were a couple of felony prosecutions in Pierce County where different juries viewing essentially the same material came up with diametrically opposite opposite verdicts.

And then there were no more obscenity prosecutions. Cities and Counties began using zoning and licensing ordinances to regulate porn businesses. Zoning laws greatly limit areas of the city or county where adult entertainment businesses can locate and can relegate them to much less desirable areas of the city such as the heavy industrial zones. Licensing laws impose special requirements such as closing hours and movie booth visibility and provide that the license can be revoked for failure to comply with these requirements. There were numerous First Amendment challenges to these ordinances - most but not all were upheld by the courts. Cities and counties then had the tools to eradicate or greatly restrict distribution of pornography or so they thought.

In the 90's the Internet arrived for the masses and porn became ubiquitous. Suddenly you could get all kinds of pornography at the click of a mouse in the comfort of your own home. Since then all governments, federal, state and local have withdrawn from the fight, realizing that scarce public resources can be better spent on crimes with actual victims like child pornography or sex trafficking.

The porn wars were finally over and for the most part, porn won.

About the Author

Gilbert Levy

Gil Levy is a graduate of U.C. Berkeley and UCLA School of Law.  After serving as a Deputy County Attorney in Tucson and a felony trial attorney with the Seattle King County Public Defender Association, he has spent over forty years in private practice specializing in criminal defense and First Amendment cases.  He has argued cases successfully in the United States Supreme Court, the United States Courts of Appeal, and the Washington Supreme Court.  He is licensed in Washington and Arizona and has active practices in both States.  He has earned an AV (highest) rating from Martindale Hubbell and a 10.0 (superb) rating from AVVO.  In 2010, Gil received the President's Award from the Washington Association of Criminal Defense Lawyers for distinguished service to the profession. Gil has tried dozens of jury trials including homicide, racketeering, conspiracy, drug cases, and complex frauds.  He has enjoyed success in having local ordinances declared unconstitutional on First Amendment grounds and in getting clients off of death row.  Gil is married with three adult children and two grandchildren.  Other than family, friends and work, his major passions are international travel and fly fishing.

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