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Alabama obscenity law comes under fire

By David L. Hudson Jr.
First Amendment Center research attorney

Alabama's new obscenity law — called the "toughest anti-obscenity act in the nation" by its sponsor — is under attack in four separate federal lawsuits filed by owners of nude dance clubs and various individuals.

The law went into effect July 1 and contains restrictions on sexual expression that, among other things:

  • criminalize the distribution of material that is "harmful to minors";
  • prohibit any adult-entertainment business from presenting nude dancing without "fully opaque covering" over the male or female genitals and female breasts;
  • prevent adult businesses from locating "within 1,000 feet of any church, place of worship, church bookstore, public park, public housing project, day care center, public or private school, college, recreation center, skating rink, video arcade, public swimming pool, private residence or any other place frequented by minors";
  • make it unlawful to sell "any device designed or marketed as useful primarily for the stimulation of human genital organs"; and
  • allow local governments to "restrict the type of advertising that the business establishment can display outside the establishment."

The Alabama Legislature approved the law in April, which the governor then signed.

In Williams v. Pryor, six individuals sued Bill Pryor, attorney general of Alabama, and the district attorney of Madison County, challenging the provision that criminalizes the selling of any device designed or marketed for sexual stimulation.

The plaintiffs, who include both the owners of adult novelty shops and users of the products, contend some of the devices are necessary to treat sexual dysfunction.

In their complaint, they allege that "by restricting sales of these devices to plaintiffs, Alabama has acted in violation of the fundamental rights of privacy and personal autonomy that protect an individual's lawful sexual practices guaranteed by the First, Fourth, Ninth and Fourteenth Amendments of the United States Constitution."

Michael Fees, an attorney for the plaintiffs, said: "We certainly see the First Amendment implications of a law that classifies things otherwise considered non-obscene as obscene. The provision in this obscenity law has lumped devices into the concept of obscenity, which usually includes some form of expression or depiction."

ACLU National Staff Attorney Mark J. Lopez, who is assisting with the case, said that "this case is about government imposing its version of morality on private citizens. But it's clear to us that many people don't share the government's point of view."

Chief deputy attorney general for the state of Alabama, Richard Allen, said, "There is a presumption that statutes are constitutional. It is the duty of the attorney general's office to defend their constitutionality and we intend to do our duty in this case."

The three other cases — Ranch House Corp. v. Amerson, Reliford v. Whisante and SJB Corp. v. City of Birmingham — squarely challenge the law on First Amendment grounds.

Attorney George Monk has filed federal lawsuits against the law on behalf of owners of nude dancing clubs in both Madison and Calhoun County. He said, "The act clearly violates the First Amendment for several reasons. First of all, the act targets a form of expressive conduct; it is not a general anti-nudity statute. Secondly, it is a content-based enactment that has the practical effect of banning non-obscene sexual expression and non-obscene sexually explicit productions."

In Reliford v. Whisante, Monk filed suit against the sheriff and district attorney of Madison County in their official capacities on behalf of Dawn Reliford, the owner of two adult clubs, Fantasia and Dawn's Den, that feature erotic dancing.

In the complaint, Reliford alleges that several provisions in the state's new obscenity law criminalize topless nude dancing in violation of the First Amendment. The lawsuit also challenges the zoning and licensing provisions in the law.

Reliford claims that the zoning provision, which prohibits an adult business from locating within 1,000 feet of "anywhere minors frequent" makes the law "so overbroad, vague and without proper foundation so as to evince a purpose and effect to deny access to protected expression."

The Madison County district attorney's office referred a inquiry to attorney George Royer. Royer was out of the office and unavailable for comment.

A federal judge held a hearing on Reliford's motion for a temporary restraining order last week, but has yet to rule. The defendants have agreed to withhold enforcement pending the judge's decision on the restraining order.

In Monk's other case, Ranch House Corp. v. Amerson, a federal judge has ordered Calhoun County officials to withhold enforcement of the obscenity law until after Aug. 24 — the date on which the judge will determine whether to grant a preliminary injunction against enforcement of the law.

The Amerson and SJB cases are substantially similar to the Reliford case.

Sen. Tom Butler, the sponsor of the new obscenity law, could not be reached for comment.

Alabama enacts 'toughest anti-obscenity act in the nation'
Civil-liberties expert blasts measure, says 'basically everyone is in violation of this overly broad law.' 05.01.98

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