Sunday, May 16, 1999

Video porn debate plays on

Flynt case is, like obscenity, hard to define

The Cincinnati Enquirer

        Larry Flynt says he spent up to $500,000 on lawyers, focus groups, surveys and travel expenses to wage his two-year obscenity battle with Hamilton County.

        Police devoted hundreds of hours of work to the case, and the prosecutor's office committed two of its top attorneys and a full-time appellate lawyer.

        Four days after the case ended, it's still unclear exactly what either side has to show for its investment.

        The only immediate result is that individuals in the county will no longer be able to rent videos like Oral Passions and Rocco More Than Ever, Part 2.

        But there is continuing debate about what, if anything, the county's latest tiff with Mr. Flynt will mean to the community and the rest of the nation in the years ahead.

        “There's no doubt about it,” said Prosecutor Mike Allen, “this is a significant legal event.”

        One of Mr. Flynt's attorneys, H. Louis Sirkin, doesn't see it that way. He said the case left open many issues that will be debated for years in Cincinnati and across the country.

        “It proves nothing,” Mr. Sirkin said. “It's really a wasted effort because nothing really changes.”

        The disagreement is rooted in the surprising plea deal that ended Mr. Flynt's case and, perhaps to a greater extent, in the very nature of obscenity laws. (May 13 coverage of plea deal)

        The deal stunned many who had followed the case because Mr. Flynt had vowed his trial would bring a decisive end to his decades-long fight with local authorities.

        The deal, however, was anything but decisive. While its terms were clear, its meaning was so muddled that both sides were able to declare victory.

        The agreement required Mr. Flynt's Cincinnati corporation, Hustler News & Gifts, to plead guilty to two counts of pandering obscenity for selling sexually explicit videos from its downtown store.

        As part of the deal, Mr. Flynt promised he would never again sell pornographic videos in the county.

        In exchange, prosecutors dropped 15 obscenity-related charges against Mr. Flynt and his brother Jimmy, both of whom had faced up to 24 years in prison.

        Before they cut a deal, the Flynts' trial had been hailed by some as the kind of high-profile case that might change the way obscenity laws are viewed in America today.

        Without a jury verdict, though, the laws seem as confusing as ever.

        “The laws are so nebulous,” said Mr. Sirkin, who has tried dozens of obscenity cases nationwide. “I guess the only thing that will change it is if the Supreme Court creates a more specific definition, one that puts it all in black and white.”

        The court's current definition has been on the books since the early 1970s and is now the basis for obscenity laws in most states.

        It establishes a test that jurors are asked to apply to explicit material. A key part of the test requires jurors to decide whether the material, taken as a whole, lacks serious artistic, literary, scientific or social value.

        The test is intentionally subjective because the high court wanted to allow juries in different communities to set different standards.

        But because it's so vague, it's often difficult for authorities to say precisely what the community standard is until a case has gone to court.

        Mr. Allen said that's why the plea agreement with Mr. Flynt was a victory for prosecutors. When Mr. Flynt's corporation pleaded to obscenity, he said, it affirmed the county's standards.

        “When you plead guilty, you are admitting that the conduct alleged is true,” Mr. Allen said. “You are admitting that these videos are obscene.”

        He said the plea has national implications because it now can be used against these videos and others like them in jurisdictions all over the country.

        Bruce Taylor, of the National Law Center for Children and Families, said it also may spur prosecutors elsewhere to take on pornographers in their communities.

        He said if Cincinnati can force a deal with Mr. Flynt, whose publishing empire may be worth as much as $400 million, then there's no reason other cities can't successfully prosecute lesser-known defendants.

        “The Flynt prosecution will be an encouragement to many prosecutors,” said Mr. Taylor, who has prosecuted more than 80 obscenity cases. “A lot of people will hear about it.”

        Jeffrey J. Douglas, an attorney for the adult film industry, says that's just wishful thinking. As director of the Free Speech Coalition, Mr. Douglas said he has seen firsthand how wildly standards can differ from one community to another.

        He said the Flynt plea is not a concession to anti-pornography forces because it applies to only one corporation in one community.

        Because there was no jury verdict, he said, prosecutors are wrong to claim it is a true measure of Hamilton County's standards. He said it's a plea deal and nothing more.

        Mr. Douglas said it's also unreasonable to suggest that prosecutors in other states could use the plea deal to their advantage.

        In obscenity cases, he said, jurors must decide if the material violates their own standards, not those in another community.

        “I don't think it will have broad consequences,” Mr. Douglas said. “The only real loss, and I don't believe it goes beyond Cincinnati, is that they felt it necessary to restrict sales of these products.”

        He said the videos are no more graphic than material available on the Internet and from mail-order video companies.

        Adult Video News, which tracks developments in the industry, estimates that Americans rent or buy about $4.1 billion in adult videos every year. AVN's features editor, Mark Kernes, said the impact of the Cincinnati case probably won't be felt beyond the county line.

        “Something that ends in a settle ment and not a verdict doesn't have the same impact,” Mr. Kernes said. “But it will keep any more (video dealers) from showing up there for a very long time.”

        For anti-pornography activists in Cincinnati, that's good enough.

        “The citizens of Greater Cincinnati have the highest community standards in the nation,” said Phil Burress, president of Citizens for Community Values. “They should be proud of that.”

        Mr. Douglas said neither side has much to celebrate. He said the Cincinnati case, like many other obscenity cases, consumed a great deal of time, money and energy without really changing anything.

        “Putting on an obscenity case requires great resources,” he said.

        Mr. Flynt, who complained that the case “cost him a fortune,” said he still feels it was money well spent. In the end, he said, all he really wanted was to re-establish his Hustler magazine in Cincinnati.

        He said he accomplished that much even though the deal forces him to pack up his videos. “I got what I wanted all along,” he said.

        His attorney, Mr. Sirkin, said both sides could learn a few lessons from the Cincinnati case.

        He said a more reasonable approach by authorities and pornography dealers could save everyone a lot of time and money. Instead of immediately turning to the courts, he said, the disagreements probably could be resolved through thoughtful negotiations.

        He said communities could set aside zoned areas for adult businesses. And those businesses, in turn, could respect reasonable requests by authorities regarding their inventory.

        “It doesn't have to go into a criminal violation,” Mr. Sirkin said. “If the sides would sit down and talk and be reasonable about it, a lot of things could be worked out.”

Flynt looking for 'Hustler' retailers
- Video porn debate plays on
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