DAYTONA BEACH, FL -- After a trial, U.S. District Judge John Antoon has struck down city ordinances used to regulate exotic dance clubs here in a decision based primarily on the city’s “shoddy” secondary effects studies, which in turn reflect the city’s “stubborn refusal” to accept the evolution of the law as laid out in the U.S. Supreme Court decision in City of Los Angeles v. Alameda Books (2002) and in the 11th Circuit case, Peek-A-Boo Lounge of Bradenton, Inc v. Manatee County (2003). In Alameda Books, the High Court raised the bar on secondary effects evidence by making clear that municipalities cannot get away with shoddy data or reasoning and that their evidence for secondary effects must fairly support the rationale for an ordinance. In Peek-A-Boo, relying on Alameda Books, the 11th Circuit clarified the process for analyzing whether a ordinance is sufficiently supported by evidence of so-called secondary effects. Now it’s a new ball game. “Gone are the days when a municipality may enact an ordinance ostensibly regulating the secondary effects on the basis of evidence consisting of little more than the self-serving assertions of municipal officials,” said Judge Antoon, quoting from the Peek-A-Boo decision.

The victory in this case, Daytona Grand Inc dba Lollipop’s Gentlemen’s Club v. City of Daytona Beach, will surely be heartening to those in adult entertainment who have long chaffed at the high-handed way regulatory groups have thrown around loose secondary effects arguments without having to answer for them. (See Mark Kernes, “The Myth of Secondary Effects.”

Congratulations to Lollipop’s and to their attorneys Brett Hartley and Daniel Aaronson. Congratulations as well to expert witnesses Daniel Linz and Randy D. Fisher, who dissected Daytona Beach’s flimsy rationale and generally gave a clinic on the scientific process, as chronicled rather delightfully in Judge Antoon’s decision.

From the NewsJournalOnline.com, 1/26/06
And Woodhull Foundation, 1/26/06

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UTAH SPAM LAW CHALLENGE UPDATE

SALT LAKE CITY, UT -- A group of mainstream marketing organizations and advertising trade associations, as well as two online privacy groups, have filed court papers asking permission to participate in FSC’s lawsuit challenging Utah’s anti-spam “child protection registry” law. The groups include the E-mail Sender and Provider Coalition, the American Advertising Federation, the American Association of Advertising Agencies, the Association of National Advertisers, the Electronic Frontier Foundation and the Center for Democracy and Technology. In court papers, the organizations state they are concerned that the registry already is having an adverse impact on their members and are asking to be allowed to file an amicus brief.

Matthew Prince of Unspam Technologies, Inc, the company that provides the software that Utah (as well as Michigan and possibly other states) use in their “child protection registries,” issued a statement expressing surprise that mainstream companies wanted to get involved in the case.

"I'm surprised that organizations like the Association of National Advertisers--whose boards are made up of companies like Wal-Mart and LeapFrog, and who have been at the forefront of protecting the rights of individuals and parents to choose what material comes into their homes--would support a lawsuit by the pornography industry, arguing that they have the right to send whatever and whenever they want, and to whomever they want," said Prince.

Absent from the groups offering to file the friend-of-the-court brief was the Direct Marketing Association. According to an unidentified source in an industry report by Ken Magill, <http://directmag.com/news/dma-012606/> the DMA did not join the other trade groups because, among other reasons, it was squeamish about publicly supporting an adult entertainment group.

Lou Mastria, vice president of interactive and emerging media for the DMA, denied that his organization is squeamish on this issue. He said the DMA typically doesn't file amicus briefs on the trial court level, but does so on the appellate level.

From Ken Magill, Directmag.com, 1/25/06

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CITY HURRIES TO FIX ORDINANCE

FLAGLER BEACH, FL -- The City Commission here has reduced the city’s adult entertainment application fee from $10,000 to $500. The action, it will come as no surprise, was not aimed at attracting adult entertainment to the Flagler Beach area. Rather, it reflects an effort to rework the adult ordinance to help defend against a lawsuit filed by Attorney Luke Lirot earlier this month on behalf of Liquid, Flagler Beach’s newest exotic dance club. Bringing down the inflated application fee may not be enough to save the ordinance, however. Lirot says the city's ordinances are not based on "secondary effects" triggered by exotic dance clubs.. Instead, the laws are based on the premise that adult entertainment is offensive to some, which violates the Constitution, he said.

"The whole concept reeks of discrimination because people have a vision of people who participate in adult entertainment as being worse than others," he said.

Lirot also says that under the city's current laws, there are no viable locations for adult entertainment clubs. Liquid is located in an area zoned as "tourist commercial." City laws, however, restrict adult clubs to areas zoned "light industrial." According to Larry Torino, the city's planning and zoning director, the only such zone is a 24-acre swath west of the Intracoastal Waterway near the city's wastewater plant. Most of that land is city-owned, Torino said.

While hoping for a temporary restraining order on the city ordinances, the dancers at Liquid are avoiding citations for nudity by dancing with clothes on.

From Janette Neuwahl, NewsJournalOnline.com, 1/21/06

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BILL ADDS VIOLENCE TO HARM TO MINORS LAW

SALT LAKE CITY, UT -- State Representative David Hogue (R-Riverside) has introduced a bill that would amend the state’s “Material Harmful to Minors” law, adding “inappropriate violence” to the list of items currently illegal to provide to minors. Under current law, harmful matter consists of materials that are “obscene for minors” under Supreme Court guidelines that say some materials that are not obscene for adults can be obscene for minors, such as, for example, explicit nudity. Included as inappropriate violence in Hogue’s bill (HB257) is violence, of whatever form, when it is glamorized or gratuitous, used to shock or stimulate, trivializes the serious nature of realistic violence, uses brutal weapons, etc. The list goes on.

Hogue is perhaps a bit unclear on the legal precepts. "You can't just stick violence into an obscenity statute and expect it to stand up to constitutional scrutiny," says Margaret Plane, Legal Director of the ACLU in Utah. "Obscenity is not protected speech. Government can regulate obscenity. The courts have not said the same thing about violence. The courts hold that even juveniles have First Amendment rights. There has to be a compelling basis that the harms are caused by the violent video games.”

From Glen Warchol, The Salt Lake Tribune, 1/21/06