Obscenity Law in Ohio Targeted by Lawyer
The
Washington Times, July 23, 2003
http://www.washingtontimes.com/national/20030722-112935-9964r.htm
By Frank J. Murray
A lawyer who specializes in defending the distribution of sex images,
including by Larry Flynt’s Hustler magazine, has moved to overturn Ohio’s
obscenity law on the basis of the recent Supreme Court decision legalizing
homosexual sodomy.
“Practically all choices
made by consenting adults regarding their own sexual practices [are] a matter
of personal liberty and thus beyond the reach of state control,” H. Louis
Sirkin told Common Pleas Judge Richard A. Niehaus in Cincinnati in presenting
his view of the Supreme Court’s 6-3 June decision in Lawrence v. Texas.
Judge Niehaus reserved
decision on Mr. Sirkin’s 15-page motion and allowed the trial of Shawn
Jenkins of Cincinnati to enter a second day yesterday. Mr. Jenkins was
arrested in October 2001, but an earlier trial had been postponed after he
arrived at court drunk two days in a row.
Mr. Jenkins faces up to a year
in prison on one count of pandering obscenity at his Tip Top Magazines store,
where an undercover sheriff’s deputy, Sgt. Matt Guy, bought the videotape
titled “Maximum Hardcore Extreme, Vol. 7.”
Citing what the law calls a
“due process right to privacy,” Mr. Sirkin noted high court references to
bedrooms and sanctity of the home in the sodomy decision and other rulings—
including on abortion, contraception and parental rights.
This, he asserted, must
include that the right to own obscene material at home includes a right for
others to sell such materials. The suit is among the first to reach beyond
homosexual issues in using the high court’s June 26 decision barring states
from criminalizing “sexual practices common to a homosexual lifestyle.”
“[Those rights] have moved
out of the marital bedroom and into the public sphere of commercial
interactions and private interactions between consenting adults,” Mr. Sirkin
said, citing Justice Antonin Scalia’s analysis that the sodomy decision
calls into question state laws against obscenity as well as bigamy, homosexual
“marriage,” adult incest, prostitution, masturbation, adultery,
fornication and bestiality.
Hamilton County prosecutor
Mike Allen told The Washington Times in a telephone interview yesterday that
he expects the motion to fail, but that he takes it seriously because it had
been filed by Mr. Sirkin, whose most recent high-visibility case was his
persuading the high court last year to strike down the Child Pornography
Prevention Act of 1996.
“It’s our position that
[the ruling] doesn’t apply to the seller in obscenity prosecutions,” Mr.
Allen said. Mr. Jenkins, he said, runs a store that sells videos and is not a
purchaser viewing them at home.
“I can’t remember the last
time in this county a person was prosecuted for owning an obscene videotape.
It’s the person who’s selling or distributing, or pandering, if you
will.” This suggests that Mr. Sirkin is distorting the sodomy ruling.
“It’s not surprising that
Lou would be the first to invoke it because this is his area of expertise. We
respect Mr. Sirkin’s legal acumen, but the Texas sodomy decision just is not
applicable.”
The prosecutor said the Tip
Top arrest was the fruit of an investigation by the office of Sheriff Simon
Leis Jr., a former prosecutor who throughout his career has pursued Larry
Flynt, often encountering Mr. Sirkin as the pornographer’s defense lawyer
all along the way.
Mr. Sirkin argued in court
that the videotape, which does not feature homosexual activity, is not
obscene. As is usual in obscenity cases, a jury will decide whether the
material violates community standards of decency.
On Monday, assistant
prosecutor Brad Greenberg told the jury that the $15 videotape qualifies.
“Everybody has a normal, healthy interest in sex, but ... this crosses the
line.”
By raising the federal
constitutional issue at trial, Mr. Sirkin preserved the right to appeal
through the Ohio courts and all the way to the U.S. Supreme Court should Judge
Niehaus turn him down, as Mr. Allen predicts he will.
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