The First Amendment protects freedom of speech and freedom of the press along with
other freedoms.  Yet, there has always been a conflict between freedom of speech and freedom of
the press and our educational system.  For example, does freedom of speech allow a student to
say whatever he or she wants to say in class and disrupt that class?  Does freedom of the press
allow a student to pass out handbills in the classroom denigrating the teacher and the teacher's
message?  Does the school newspaper have the right to criticize the administration of that
school? 

On one hand freedom of speech would dictate the right of the student or the student
newspaper to challenge those in power and to point out the failings of the teacher or the
administration.  On the other hand orderly conduct and cohesiveness are essential to the public
education system.  As to what goes on, on campus, the courts have routinely sided the mandate of
the educational system to provide education over the rights of the dissenting students to dissent
on campus and in school related media.  There are always some exceptions.

However, a few years ago a high school student in the State of Florida set up her
facebook page with criticisms of one of her teachers.  Because of those criticisms, she was
suspended from school.  The offending language on her facebook page was simply "Ms. Sarah
Phelps is the worst teacher I ever met".  She further provided on that facebook page "those select
students who have had the displeasure of having Ms. Sarah Phelps, or simply knowing her and
her insane antics: here is the place to express your feelings of hatred.".

Apparently Ms. Phelps was not as unpopular as the student Katherine Evans thought.
Three people responded to her facebook page criticizing her and supporting the teacher.  After
that, Evans removed the page.

Because of this transgression, Ms. Evans was suspended for three days although she had
been an honor student.  Her behavior was classified as disruptive.  She was also removed from
her advance placement classes and put in regular classes.  Being put in regular classes instead of
advanced placement classes would have affected her GRADE POINT AVERAGE along with
making her credentials less attractive to colleges.  This could have had a profound effect on her
future.

Last month, U.S. Magistrate Barry Garber ruled that Ms. Evans' First Amendment
constitutional rights had been violated by the school and has allowed her lawsuit against the
school to move forward.  The ruling was based upon the fact that Ms. Evans' conduct was
outside of the classroom, did not disrupt the activities of the classroom and was not dangerous
conduct.  Ms. Evans is not seeking substantial damages but only to have her named clear, her
suspension removed from her file and to have her rights vindicated.

This case points out that just because one is a student that student does not lose their
constitutional rights.  It further points out that the arm of the school or the jurisdiction of the
school does not always follow that student home.  In this case, this was a student using a social
networking system to express her views.  It was not done on school time and only stated the
student's opinion.  Even students have the right to have an opinion about those that teach them.
If Ms. Evans' conduct was not constitutionally protected, would then a student talking to another
student about their beliefs in the inadequacies or the unfairness of the teacher subject that student
to school sanctions?  Wouldn't it create a society where all students had to say that their teachers
were the best or say nothing at all?  In our society we value opinions and the right to voice them
as much as any value that we have.  Schools that are in the business of opening minds should not
be in the business of taking away that same openness if they do not like what is said or heard.

On a larger scale, this opinion protects conversations by students off campus.   It
separates when a student is a student with limitations to when a student is entitled to all their
constitutional rights.

On another note, by the time you have read this, Daniel Aaronson will have given his
presentation in San Antonio, Texas at the First Amendment Lawyers' Association meeting.
Along with Allen Rubin from Michigan, Mr. Aaronson will discuss sex trafficking; harboring,
human trafficking and other forced labor issues as they relate to adult entertainment.

In addition, to the topic above, there will be presentations on zoning and licensing of
adult establishments, obscenity prosecutions; 2257 requirements; and a whole host of other First
Amendment and adult entertainment related topics.  In our next article, we will bring you up to
date on the current trends in these areas and inform you of the cutting edge law in these realms. 

     The First Amendment protects freedom of speech, expression, along with freedom of the
press.  Since the advent of the electronic media, radio, television and the like have been given by
and large the same protections and freedoms.  In a venue where one would expect that there
would be First Amendment protections for mass media television and other video
communications, that being in Federal Courthouses, and more specifically federal courtrooms,
there actually is not. 

Although almost all of the States have made allowance for television cameras to be in the
courtroom, the Federal Courts have not made the same provision.  Until recently no cameras
were allowed in United States District Courts, (the trial court level).  The appellate court level,
that being the United States Circuit Courts of Appeals had the vast majority opposed to allowing
cameras in their courtrooms and only two of the United States Circuit Court of Appeals allow
cameras.  The Supreme Court of the United States have blanketly rejected cameras in their
courtroom.

There are many philosophies as to why cameras should not be allowed in the courtrooms
in the Federal system.  Some Supreme Court Justices, enunciated that it was their belief that
putting cameras in a courtroom makes the courtroom into a show and therefore distracts from
justice.  Others have argued that cameras in the courtroom affects the accused's right to get a fair
trial and his right to get a fair trial is paramount.  As has been said, most of the States have
allowed cameras in the courtrooms for a number of years without justice breaking down.

Recently, the Ninth Circuit which encompasses most of our western States including the
State of California has chosen to implement on a trial basis a procedure where non-jury trials
involving civil matters would be videoed.  The procedure requires the head of that particular
District within the Ninth Circuit along with the trial judge to decide on a case by case basis
whether or not this is a trial that should be videoed.

Last month, in San Francisco U.S. District Court Judge Vaughn Walker ruled that video
cameras would be allowed in his courtroom during the trial of the Proposition 8 matter in his
courtroom.  The Proposition 8 matter is a trial involving an attempt by gays and lesbians and
their supporters to show that they and other minorities suffer from prejudice and bigotry that
requires a remedy from the Courts.  Proposition 8 a law voted on in California outlawed same
sex marriages along with  curtailment of other liberties for gays and lesbians.

Before the case could be started, Judge Walker's decision to allow cameras in his
courtroom and a live internet feed  was struck down by the United States Supreme Court.  The
Court ruled 5 to 4 that they worried that opponents of gay marriage and their paid witnesses
would be subjected to "harassment as a result of public disclosure of their support" for
Proposition 8.  They further went on in support of the injunction against cameras in the
courtroom to say that Proposition 8 defenders had shown "irreparable harm" will likely result "if
the trial had been broadcasted".

This ruling may be sending a signal that obviously the Supreme Court of the United
States most likely is not in favor of gay marriages or at a minimum believes that each State has
the right to decide this on their own.   Their decision remarkably points out fears of one side and
possible subject to ridicule because of their support on the ban of gay marriages and does not
point out the same fear for those who support gay marriages.  Yet gay bashing has been going on
for centuries.  Anti-gay bashing is a phenomenon that has yet to rear its head.

Whether one supports gay marriages or not, one must concede gays have been subject to
harassment, ridicule and unequal treatment in this country from its inception.  Openly gay and
lesbian soldiers are not permitted to serve in the military.

It seems somewhat hypocritical and almost laughable at the Supreme Court's lack of
sensitivity towards gays and lesbians and yet it is worried about possible harassment of those
who keep gays down and if attempts to keep gays from having equal rights are exposed.  In
essence, they feel that they must protect the oppressor in their desire to oppress rather than
shedding light on those who are oppressed. 

If the Supreme Court's logic holds true, nothing can be discussed in the open.  There
always will be two sides to an argument.  There will always be some who may believe that they
should harass or intimidate somebody for their views.  Somehow, the Supreme Court believes
those who have views against the equality of gays and lesbians need to be protected more than
those who have views on the other side.

The Supreme Court's opinion also fails to take in account of the fact that those who will
testify in this matter will have their names revealed, at least in the print media.  Those who will
testify in this Proposition 8 trial more than likely have already espoused their views in public.
The Supreme Court's opinion takes away First Amendment rights from all of us because it
believes a select few might be harmed.  Although the minority always needs to be protected, it
can not come at the expense of the First Amendment.  The only time that there is even an
argument that the First Amendment must take a back seat is when it effects an accused right to a
fair trial.  In this matter there was no accused and the issue of a fair trial was not the basis of the
Supreme Court's ruling.

     For the past two years we have periodically written to you about the two bookstores
within the City of Lauderhill, that the City classified as adult establishments and tried to close
down.  The first establishment, University Video Enterprises, Inc. was only shut down for a
matter of hours by the City, while Thee Fantasy Shoppe II was permanently closed. 
    
Both entities filed suit against the City of Lauderhill.  In the case of University Video
Enterprises, Inc., their suit involved an injunction to keep them open and not have the city's adult
entertainment code applied to them, while challenging  the constitutionality of that code.  As to
Thee Fantasy Shoppe II, since they had been permanently closed by the City, their suit involves
damages along with a declaration that the City's Adult Entertainment Code, licensing
requirements, licensing suspension revocation hearing and zoning were unconstitutional.

In the case involving University Video Enterprises, a settlement was reached with the
City approximately 8 months ago where University Video Enterprises was not going to be
classified as adult entertainment and was going to be allowed to continue to operate in the
manner that it had been.  Further, University Video Enterprises, Inc. received attorneys' fees for
their troubles from the City.

Since Thee Fantasy Shoppe II was suing for damages, this case has not been settled.
However, on June 27, 2008, the Honorable Joan A. Lenard, United States District Court Judge
granted most of Thee Fantasy Shoppe II"s Motion for Summary Judgment.  In her ruling, Judge
Lenard found for Thee Fantasy Shoppe II on numerous grounds.

Judge Lenard found that the City's adult entertainment licensing scheme was
unconstitutional as it vested too much discretion in the City officials and allowed for
unacceptable delay by the City in granting a license.   Further, the City requiring that adult
entertainment be located in an I-1 zone was also unconstitutional as a special exception was
needed to located in the I-1 zone.  Judge Lenard found that the requirements of the special
exception also gave the City too much discretion and also allowed for unacceptable delay. 

The Court also ruled on the City's requirement that the proposed establishment not be in
violation of any provision of the City's Code, or any building, fire or zoning code, statute,
ordinance or regulation.  The ruling as to this matter was that this was also unconstitutional
because it would allow the City to decide which statutes or ordinances it wanted to apply to adult
entertainment and allow the city to make the unilateral determination whether those codes or
statutes had been violated.  In addition, other provisions of the licensing scheme were also
declared unconstitutional. 

Judge Lenard also found that the defects in the licensing scheme for adult entertainment
were so pervasive, that she was unable to sever the unconstitutional parts and leave remaining
those parts that were constitutional.  Rather, because of how pervasive the unconstitutional parts
were, she declared the entire licensing scheme unconstitutional.

Although Judge Lenard ruled on behalf of Thee Fantasy Shoppe II, on almost all grounds,
she still has set the issue of damages to be determined through mediation.  If mediation does not
come to a resolution of the matter, then a trial will be held on the issue of the proper damages.
Regardless of the amount of damages, Thee Fantasy Shoppe II should also be awarded attorneys'
fees.

Lastly, on due process grounds, other than First Amendment grounds, the Court ruled that
the City's suspension revocation of business licenses prior to a hearing being held was also
unconstitutional.  The Court noted, that the City's interest in closing businesses that did not have
licenses or valid licenses according to the City, was overshadowed by the business's rights to
have a due process hearing before their businesses were taken away.

We will keep you informed of what transpires as to the damages part of this case in the
upcoming months.  However, in early September, Club Eden is scheduled to go to trial on its
challenges to the Town of Davie's zoning, licensing and adult entertainment scheme.  Many of
the arguments ruled on by Judge Lenard in Thee Fantasy Shoppe II are similar to those presented
in the Eden litigation.  We will keep you informed of what transpires in that litigation as that
comes to past.
                      
For those of you who follow the intricacies of First Amendment law and adult
entertainment juris prudence, you might remember the case of Alameda Books v. City of Los
Angeles.  This case made it all the way up to the United States Supreme Court, where the Court
ruled for the first time that the adult entertainment establishment had the right to contest the
city's factual finding as to whether or not adult entertainment establishments caused adverse
secondary effects.  The Supreme Court ruling in Alameda Books led to the wonderful decision in
Daytona Grand v. City of Daytona Beach, at the District Court level which unfortunately was
overturned by the Eleventh Circuit Court of Appeals.  Other good decisions for adult
entertainment from around the country also were based upon the dictates of the Alameda Books
case at the United States Supreme Court. 

The Alameda Books case was remanded by the United States Supreme Court back to the
Federal District Court for the District Court to have a trial based upon the Supreme Court's
decision.  However, prior to trial Judge Pregerson granted Alameda Books Motion for Summary
Judgment, relying upon Justice Kennedy's ruling at the United States Supreme Court. 

Justice Kennedy's decision pointed out that there must be proportionality.  In essence,
what Justice Kennedy was saying was you can easily do away with all adverse secondary effects
of adult entertainment, by closing down all adult entertainment.  However, there would be no
First Amendment expression left and therefore the remedies of clearing up adverse secondary
effects would not be in proportion to the harm to the First Amendment.

Judge Pregerson who found in Alameda at the trial level, that the city's regulation for
preventing two types of adult uses even if owned by the same business or if a part of the same
business could not be in the same structure was unconstitutional.  The Judge found that adult
arcades based upon the city's ordinances would not survive and the city would have no adult
arcades.  Therefore, since adult arcades and this form of First Amendment expression would not
survive, the ordinances lacked proportionality.

In the next month Daniel Aaronson and James Benjamin will travel to San Francisco to
the First Amendment Lawyers Association Summer Meeting.  We will have the opportunity to
speak with the lawyer responsible for this victory in Alameda Books and learn the intricacies of
the decision and how it came to pass.  In addition, James Benjamin will be attending the
Gentlemen's Club Exposition in Las Vegas, Nevada at the end of August.

In the upcoming editions, we will certainly inform you of what transpired at these two
events. 

   Last month, we had the wonderful opportunity of being co-counsel with H. Louis Sirkin and Jennifer Kinsley from Cincinnati, Ohio and Jeffrey Douglas from Santa Monica, California.  Our clients were Paul Little a/k/a Max Hardcore and Max World Entertainment, Inc.  The trial was an obscenity prosecution of Mr. Little and Max World Entertainment, Inc. for five video clips on the Internet and five DVDs sent to Tampa.  The trial was held in Tampa in front of United States District Court Judge Susan Bucklew. 

Unfortunately, the verdict did not go as we had hoped that it would.  After one and a half days of deliberations and the jury sending a note back that they were hopelessly deadlocked, the jury ultimately returned a verdict of guilty on all counts.  The material was not the ordinary run of the mill pornography, but rather consisted of anal and vaginal fisting; peeing in women’s mouths; gagging on cocks until there is vomiting; blow jobs with vomit still on cocks along with role playing pretending that the actresses were under the age of 16. 

Regardless of the content of the clips and DVDs, obviously the verdict was quite disappointing.  What was not disappointing however was the camaraderie between the attorneys involved in the case, the cooperation and the team effort.  Very rarely does one get the opportunity to be part of a defense team with such talent and yet no egos needing to be assuaged or catered to.

A Motion for New Trial has already been filed in the case.  While the verdict was being read, we noticed that one of the jurors was crying continually.  Later, that juror along with two others showed up at our hotel having been informed by the press where we were staying, and poured out their hearts to us.  They explained from the get go that there were nine people in favor of guilt and the three of them in favor of not guilty.  They further explained how they tried to hold out, but eventually got beaten down by the shear numbers of the opposition.  Lastly, we were informed that one of the hold out jurors had been fired in the middle of her deliberation because of her jury duty.  It was obvious to us, that the losing of her job as a single mother of two caused this strong woman to not be able to hold out against the odds and forces of the others.

But, because she was fired, and we as the defense team were not informed of this although the judge had been informed of it during the deliberations by the juror, we believe that this fact may be grounds for a new trial.  In addition, there are additional grounds for a new trial or a reversal on appeal. 

During the trial, one of the jurors was approached by a U.S. Attorney who did not realize that he was a juror, and was chastised because the juror was going back to the courtroom to see porn.  Another juror sent a note asking if they could not be required to view all of the material although the matter must be taken as a whole.  We attempted to have the judge question this juror as to this juror’s beliefs and actions and whether he tainted the other jurors.  The judge declined.  All in all, we believe there were at least three gtounds with the jury that shout out for a new trial or reversal.

One never knows why a juror decides the way they do.  Further, one never knows where one went right or went wrong when trying a case.  However, upon reflection there is very little that we can say that we did wrong and believe truly that we tried a good case.  The jury pool that we had consisted of jurors from Lake County, Pasco County, Manatee County and the Tampa area.  From our conversations with the three jurors that approached us, apparently some of these jurors made their mind up quite quickly in the process and there was nothing that we would be able to do or say that would have changed their minds.  Sometimes, the jury pool that you get to select your jurors from are ones that really don’t give you a fighting chance to win.

 On January 20, 2006, United States District Court Judge Antoon for the Middle District of Florida, gave Daytona Grand d/b/a Lollipops possibly the most significant victory for adult entertainment in this country in a number of years.  Unfortunately, the Eleventh Circuit Court of Appeals reversed that decision at the end of June, 2007.  This reversal, sets a standard that is almost impossible for an adult entertainment establishment to meet as far as whether adult entertainment establishments cause adverse secondary effects.  Further, the Court’s ruling on zoning issues, also means that it will be rather difficult for adult establishments to find places to locate, that are economically and physically viable.

All hope is not lost.  The decision by the Eleventh Circuit Court of Appeals is not final.  In fact, Daytona Grand represented by Daniel Aaronson and Gary Edinger out of Gainesville have filed a Motion for Reheairng En Banc.  What this means, is that instead of allowing a three judge panel to make the decision for the Eleventh Circuit, rather Daytona Grand is asking for all of the judges of the Eleventh Circuit to make the ruling.  The Petition for this Rehearing En Banc in pending in front of the Eleventh Circuit and since many of the rulings within Daytona Grand now conflict with the cases of Peek-A-Boo and Flanagans out of the Eleventh Circuit, there is great hope that in fact the entire Eleventh Circuit panel will take the case.

If the Eleventh Circuit’s entire panel takes the case, the ruling in Daytona Grand at the Eleventh Circuit is subject to being changed by the entire panel including being overturned.  Therefore, all hope is not lost and there is still a chance that Judge Antoon’s decision at the District Court level will be upheld.

Why is there hope?  The three judges that ruled at the Eleventh Circuit on the Daytona Grand case, were not any of the judges that had been party to the rulings in both Peek-A-Boo and Flanagans.  In fact, one of the judges was a visiting judge from an international commerce court.  Therefore, only two of the judges of the entire Eleventh Circuit have actually put their names to the Daytona Grand decision.  It is sincerely hoped, that the judges that put their names on the Peek-A-Boo and Flanagans decisions will be as outraged as we are with this decision, vote to have it heard en banc, and ultimately reaffirm Judge Antoon’s decision.

In essence, the nails are not in the coffin, there is still hope and there is the chance that Daytona Grand will have the chance to fight again in front of the Eleventh Circuit.  If that does not occur, and the Eleventh Circuit does not decide to hear this matter en banc, Daytona Grand is more than willing and able to take this matter up to the Supreme Court of the United States.  In fact, regardless of how the Eleventh Circuit ultimately rules as to whether they want to hear this matter en banc or not, and whether they overturn the previous ruling by the three judge panel, it is anticipated that one of the sides in this litigation will try to take this case up to the United States Supreme Court.

So all in all, the ruling from the three judge panel of the Eleventh Circuit was not good news, yet the fight is not over.  Daytona Grand intends to have its rights vindicated along with the rights of the citizens who live in the Eleventh Circuit of Florida, Georgia and Alabama.

It is hard to forget the day after William Jefferson Clinton was elected to be President of the United States in November of 1992.  While we were driving to work, the next morning, Rush Limbaugh was on the air.  He was going through a mantra of the winners and losers on the previous night elections.  As to who was the biggest winner on that day, he voiced, that it was him.  He explained that with Clinton being in office, he would have between four and eight years of material to work with and that his job would be much easier.

Remembering what Rush Limbaugh said, we can only fee the same way about having George W. Bush as our President.  There never has been a lack of something to write about.  There has always been material, as his presidency has been the most outrageous possibly in U.S. history.  The problem is, it is almost like information overload.  With the war in Iraq; with countless violations of the Constitution; with usurping of people’s rights, with flagrant disregard for international law and treaties, on any given day what do we write about.  The answer is it is hard to write about any of them when you want to write about all of them. 

This article is supposed to be about First Amendment issues and First Amendment freedoms.  However, with this Administration there has been an assault on everyone of our rights and all of our freedoms.  We have had our phones and computers wiretapped.  We have had our treaties with other nations broken in the name of security.  We have attacked another country that posed no threat to us and have done it on the basis of lies, conjuncture and theories that did not pan out.  We have had an Administration that has grabbed more power than any Executive Branch in the history of this country.  It flaunts the rule of law and creates its own law.  In fact, Vice President Cheney has now established himself as outside of the Executive Branch of government; outside of the Legislative Branch of government and somehow a fourth branch of government with responsibility over all and answering to none.

We have had to watch an administration out a CIA operative in the name of political vendetta.  We have watched an administration official be convicted of obstruction of justice and perjury only to be pardoned by the President who ultimately he was protecting by his perjury and obstruction of justice. We have watched an Attorney General blatantly lie to Congress.

We even have had a Supreme Court that for the first time has decided not to protect a woman’s health by allowing her to have an abortion, but rather now has mandated that that abortion procedure would be criminal even if it saves her life.  That same Supreme Court on a case by case basis has sided with government over people, corporations over people but never with people.

We have a Senate and Congress that continually expresses its doubt for this war in Iraq and the President’s actions, but never steps up to the plate with binding resolutions or legislation to thwart the administration’s grab for power and zest for endless war.  We have a Congress that seems to flex its muscles, only to be constantly bullied by the President which causes them to slink away in defeat.

The President and this administration believe in the unitary executive.  They would have you believe that that means believing in a strong President as one of the three branches of government.  In actuality what they mean is that they believe in a dictator elected by the people but with all the powers of a king.  That is exactly what they have tried to set up George W. Bush as.  King George.

Since our legislators seem to be too weak to fight the king and the Courts having been stacked by the King, it is now up to us the people to demand our democracy back.  We don’t really know how it is done, because efforts like what we are asking for, just seem to grow on their own.  But somewhere, somehow it is time that the American people at the grassroot level decided to take back this country.  It is time that those of us who read our history books and civics books while going to school actually made this country become what we read about as being.  Those civic and history books were not written for the fun of it but rather to teach us how our government was supposed to behave.  It is time that we remembered our lessons of the sixth grade and forced this country to become a democracy once again and not this republican totalitarian regimen.

  At the time of the writing of this article, Daniel Aaronson is preparing for oral argument in front of the Eleventh Circuit Court of Appeals in Atlanta.  For those of you who do not understand the Federal Judicial System, the Eleventh Circuit Court of Appeals along with the other Circuit Courts of Appeals are the rungs of Court directly below the United States Supreme Court.  The case that is being prepared for oral argument is Daytona Grand (Lollipops) v. The City of Daytona Beach.

Why this is important to the people of South Florida and around the State of Florida is that if you remember, this case is the first case nationwide, or at least it is believed to be, that the adult entertainment industry actually won after a trial showing that nudity or alcohol and nudity did not cause adverse secondary effects at adult dancing establishments.  If Mr. Aaronson is successful on this appeal, it will certainly keep alive in the States of Georgia, Florida and Alabama the rights of adult establishments to contest in court that they do not cause adverse secondary effects (various harms to the community).  If the case is lost, the issue of adult establishments causing adverse secondary effects might just be foreclosed in this part of the country.  Further, since it is becoming harder and harder to challenge ordinances based upon adult establishments not causing adverse secondary effects, all through the country, this case would certainly be influential as to whether the adverse secondary effects issue remains alive for adult entertainment establishments across the country or another nail is put in the coffin on this argument.

There are three issues involved in the appeal.  The first issue is whether the city provided sufficient locations for adult entertainment establishments to locate within the city.  The second two issues deal with whether or not the city was justified in banning nudity in adult clubs and alcohol and nudity in adult clubs.  As said above, at least the last two issues are ones that may have monumental affects throughout the country.

On another note, in the case involving the three adult bookstores that have sued Miami-Dade County because of the Miami-Dade County Ordinance prohibiting doors on adult viewing booths, the County has just submitted to the Eleventh Circuit Court of Appeals, their brief in opposition to the three bookstore’s briefs that were filed previously.  The three bookstores, now will have the opportunity to file a reply brief to the one filed by the County government.  After all of the briefs are submitted, the Eleventh Circuit Court of Appeals will set down this case also for oral argument before it.

As to the two adult cases out of the City of Lauderhill, that being University Video, Inc. v. The City of Lauderhill and the XXX Group d/b/a Thee Fantasy Shoppe v. The City of Lauderhill, both of these cases are progressing with trial dates scheduled for later this year.  The issues in these cases center around the City of Lauderhill’s definition of adult entertainment or more specifically adult bookstores, and their code enforcement procedures.  The bookstores have alleged that first of all that they were not adult bookstores under the City of Lauderhill’s Code, and that the City of Lauderhill’s Code’s definition of adult bookstore is unconstitutional.  Further, the bookstores have challenged the City’s code enforcement procedures, that allow or have allowed code enforcement to shut down these types of establishments prior to any type of court hearing or even code enforcement hearing.  A procedure, that in our opinion, obviously since we are representing these stores, violate the United States Constitution and are therefore unconstitutional.

As always, we will keep you informed as these cases progress through the judicial system.  As to the oral argument in Atlanta on the Daytona Grand case, in next months article, we will let you know how it went, but do not expect a ruling from the Eleventh Circuit Court of Appeals for months to come.

Supreme Court Justice Potter Stewart when discussing obscenity once opined “I know it when I see it”.  Although that never became the legal standard and rightfully so, for most of the people it served as a good basis for their decisions.  But that belief of knowing it when seeing it apparently does not apply to the subject of child pornography.  Based upon recent case law, and the prosecution of two south Florida men in the Northern District of Alabama on child pornography charges, Justice Potter Stewart would have to change his refrain to “I know it when I don’t see it”. 

What are we talking about?  Just recently, two south Florida men have been charged with promotion of child pornography based upon a modeling web site that they allegedly ran.  Did the web site show children without clothes?  No.  Did the web site show children engaged in sexual activity?  No.  Did the web site show genitalia or breasts?  No.  Well, what did the web site show?  Simply, the web site showed children of many different ages wearing cheerleading outfits, bathing suits and various other types of attire.  Not one picture showed a bare genital or a bare body.

However, this lack of  nudity and lack of showing or viewing genitals or the like, has not stopped the U.S. Attorney out of the Northern District of Alabama from indicting these two south Florida men on promotion of child pornography charges.  The essence of the government’s contention is that although you can not see the genitals, somehow they are exhibited.

The government gets its backing to file these charges based upon a case in which there was a conviction for promotion of child pornography based upon clothed children.  Although that case is bizarre in and of itself that a conviction could be had, the reason for that conviction according to the Court was that even though the children were all clothed, the videos of the children included a  close up shot of their covered genital area for a long period time and then panned outward to get the entire child.  Further, the advertisements for those videos all spoke of sexuality and of children engaging in sex.

The case in Alabama however, is quite different.  They are not videos, but rather snapshots.  There is no focusing in on the genitals but rather the picture is of the entire child.  And lastly, and as important as all, every picture taken was taken with the blessings, approval and presence of the children’s parents.

What is very scary about this case, is that all of the pictures that you have taken of your children growing up, some of them with them in the tub, some of them dancing around in their underwear, some of them in their leotards, and yes some of them in the cheerleading outfits now are subjected to being prosecuted as child pornography if some U.S. attorney in some jurisdiction believes that they are child pornography and wants to prosecute.  All those beauty contests for children, with the flashbulbs going off and the cameras clicking, are now subject to being classified as child pornography.  Even those pictures of that cheerleader thrown up in the air with her skirt going up high now are subject to prosecution for child pornography.

We used to joke, that the Coppertone picture billboard, the one with the little girl having her bathing suit pulled down by the dog would technically now be child pornography.   Now, we have to realize that even if that dog did not pull down the bathing suit bottom, that poster that prominately displays that little girl’s butt, might also now be classified as child pornography.

The craziest thing of this prosecution, is that the statute requires the exhibition of the genitals.  Yet, when the genitals are covered how can they be exhibited?  Somehow, the government wants to take that step and argue that you can exhibit genitals by covering them up.  Taking this argument to its logical conclusion, we now have to worry about being arrested for indecent exposure.  Obviously, now as we walk down the street clothed, law enforcement and this government believes that it has the right to say you’re not covered, you are exposing your genitals.  There is a saying “the emperor has not clothes”.  That saying is now becoming outdated as it doesn’t matter whether the emperor has clothes or not since we know what is underneath, he is now naked. 

The thought of child pornography is certainly not appealing.  However, the thought of living in a country where up is down and down is up and nudity is clothed and clothed is nude is much more scary then child pornography and much more a threat to the well-being of ordinary citizens in this country than the issue of child pornography ever will be.

     Just days before you will read this article, the case in Miami-Dade County involving the doors off booths Ordinance was argued at the Summary Judgment stage before United States District Court Judge Adalberto Jordan.  Should Daniel Aaronson and Luke Lirot on behalf of their clients succeed during this argument, then within a few days after you read this article this case will go to trial before Judge Jordan.  What this means, is that should the three adult bookstores survive Summary Judgment finally the issue of whether requiring doors off viewing booths is Constitutional will finally come to trial.  Certainly, we will inform you of the outcomes in upcoming articles. 

On another note, last month Daniel Aaronson on behalf of Curves Cabaret in West Palm Beach had the luxury and the enjoyment of cross-examining a zoning official as to why Curves Cabaret had its license revoked.  This cross-examination was part of Curves Cabaret’s attempt through the injunctive process to get reopened for business after the West Palm Beach police in June came in and ordered them to close and after the Zoning Department in August sent Curves Cabaret a Notice to Cease and Desist Operation.

Although no one can predict the outcome of the hearing before United States Magistrate James Hopkins, based upon the comments by Magistrate Hopkins, it appears that Curves Cabaret may actually have a chance of winning.  We don’t want to count our chickens before they hatch, but Magistrate Hopkins seemed to have the same problems with the answers he heard as we had throughout the battle with the City that caused the suit.
 
Why was this cross-examination enjoyable?  Well, for those of you who had to deal with governmental officials, when they want to deprive you of your license or certificate of use, or want to stop you from doing business, there is always some part of some code that they can rely on to justify unconstitutional actions.  Yet, when those same officials are put on a witness stand, and are cross-examined, it is amazing how the once pompous bureaucrat starts double talking and not making too much sense.  Such was the case in West Palm Beach. 

On a different note, for months we have been writing to you about the case out of Daytona Beach where Lollipops had sued the city in order to be allowed to remain where they are, to provide nude entertainment with alcohol and to be left alone from government harassment.  In late May, closing argument was given in that case.  As of the writing of this article, United States District Court Judge Antoon has yet to render a ruling.  It would be a lie not to admit that every day the first thing that we do is to check as to whether or not Judge Antoon has rendered a decision.  On the good side, Lollipops has been open and operating for the entire time of this litigation which began in December of 2002.  Although, we can’t wait for this ruling, things are pretty good just the way they are.

    Last month Daniel Aaronson tried a very high profiled case in Broward County, Florida.  The facts were certainly not a defense attorney’s dream.  But what made the case even more difficult to try was the media attention.  

As First Amendment attorneys and criminal defense attorneys, we continually have two of our strongest beliefs pitted against each other.  That being the First Amendment and freedom of the press and the Fifth and Fourteenth Amendments Due Process rights for those who are criminally accused.   Sometimes these competing interests leave those of us who do believe in a free press and the right of an accused to get a fair trial in a quandary as to which should supersede which. 

From the First Amendment standpoint, how can there be anything more important than the right of the public to know?  How can there be anything more important than our system of justice being made public for all to see instead of the  times when justice was dispensed behind close doors and therefore was justice really dispensed.

From the other side, comes the ardent belief that nothing is more important in this country than the right of the accused to get a fair trial.  From this standpoint, the right of the public to know can only take a backseat to the right that the accused be given his fair day in court and one not jaded by media exposure.

To us, however, the most important aspect of this debate is that both of these rights need to co-exist together because in essence they protect the same things.  How can a person expect a fair trial, if these trials are done in secrecy without media attention and exposure?  On the other hand, what good is media exposure and the revealing of a process if in fact the process is not one that is fair and lacking due process?  The answer is they must exist together.

Certainly there are times when the First Amendment yields to due process concerns.  In those limited situations, courts do hold “in camera” proceedings (out of the sight of the public).  On the converse, there are also the times when media exposure has the tendency to inhibit or retard the ability of the defendant to get a fair trial but the First Amendment concerns still must prevail and allow the public the right to know.  In these situations, gag orders, requests to the media not to show facial depictions, even orders from the court that media not talk to the attorneys involved, can at times protect and insure those due process rights.

The bottom line of all this is that as long as we cherish the First Amendment and as long as we cherish a person’s right to get a fair trial, these two competing principles of the law will in fact compete.  As a First Amendment attorney we would not say that a defendant’s due process rights should take a backseat to the public’s right to know.  And as criminal defense attorneys we would not say that the defendant’s right to a fair trial supersedes that public’s right to know. 

Rather,  there needs to be that balancing between those competing interests.  Sometimes these balancings work well and sometimes they do not.  But, the only way to handle these problems is on a case by case basis.  Any rule that would favor the First Amendment over the defendant’s right to a fair trial or the converse in and of itself is legally flawed. 

These two competing interests must be allowed to compete.  Without these competing interests, two of the most fundamental interests that we have in this country, our country would not be the same.  The media still needs to realize that they are part of a larger process.  That they are part of a comprehensive set of laws and rules that all have as their goal keeping this country and making this country the freest and fairest country on earth.

Earlier this year we wrote about the Supreme Court of the United States case of City of Los Angeles v. Alameda Books, Inc.. We viewed this decision as being positive for First Amendment and adult entertainment freedoms even though there were several opinions issued by the various Justices leaving several interpretations of what the Court truly had ruled.

As was expected, the Federal Circuit Courts now are dealing with the aftermath of Alameda Books.  Each circuit either is or in the near future will have to deal with how they analyze the decision and what it means for that circuit.  The Fifth Circuit Court of Appeals just recently had the opportunity to review some of the issues presented in Alameda Books in the case of Encore Videos, Inc. v. City of San Antonio.  Although the reasoning for the decision in Encore Videos is hard to follow and understand, the net result of Encore Video was the strengthening of the "narrowly tailored" prong of this type of analysis.  In layman's terms, Encore Video puts an additional burden or better put, requires that the Ordinance in question be narrowly tailored to fulfill its stated objectives.

For example, in Encore Video, the Court noted that in fact there may be a substantial government interest in the City of San Antonio regulating adult bookstores.  Yet, the Court noted that the ordinance was not narrowly tailored to fulfill this goal as it would apply to any store that had as much as twenty percent of its inventory adult products.  The Court ruled that the ordinance therefore was not narrowly tailored as all the documentation and evidence presented by the government in their studies may have shown that there was a substantial government interest in regulating adult bookstores and video stores, but none of the studies dealt with stores that allowed no viewing on the premises and only had a threshold of as little as twenty percent of its inventory classifying it as adult. 

In essence, Encore Video shows that no longer can the government just cite studies from other jurisdictions and say that their ordinance serves a substantial government interest and is narrowly tailored.  Rather now the Courts will actually look at these studies and evidence to see if the ordinance furthers a substantial government interest and if that ordinance is narrowly tailored to fulfill the governmental interest shown by the studies and evidence.

We expect that over the next couple of years, to report to you on other decisions dealing with the fall out of Alameda Books. Encore Video was decided by the Fifth Circuit.  No one will ever accuse the Fifth Circuit of being liberal, progressive or a great fan of the First Amendment and adult entertainment.  The decision in this case by the Fifth Circuit can only be interpreted as positive for adult entertainment and First Amendment freedoms.  It is also a good indicator that future Circuits might just require the government to show a substantial government interest and actually require them when passing ordinances to have those ordinances narrowly tailored.

On another note, the world has just gotten significantly worse for First Amendment and adult entertainment.  Unless you have been living in a closet or vacuum, you must be aware by now that we now have a conservative President with a very conservative House of Representatives and unfortunately now with a conservative Republican Senate.  Expect some legislation over the next couple of years to come about involving pornography, adult entertainment, and child indecency acts. 

The legislation will be bad enough.  However, the real fear comes from that fact that now your President, George W. Bush, has carte blanche to appoint those die hard conservatives to the Federal Bench including the various Circuit Courts of Appeals.  In fact, reports have him already resurrecting two names that were flatly shot down by the Democratic Senate because of their strong conservative views and according to some even racist beliefs. 

In addition, there are now reports, that some of the older conservative Supreme Court Justices may in fact now decide to step down.  It has been said, that some of them have been waiting for a Republican Senate to come into play so that when they retired they could be sure that an equally or more conservative Justice took their place.  Well, with the way the Republicans are totally in control of Washington, D.C., it is just a matter of time before we start seeing one, two, three or maybe even four Justices putting in for their retirement.  Should this take place, we could be left with a conservative leaning Supreme Court, not just for this year, or the next, but for a decade or two to come.