ASB Magazine

The celebrated Civil Rights Attorney shares some of his thoughts on battles for freedom in the past, present and future.

Before I was the lawyer for the adult entertainment industry in Georgia, I was the lawyer for civil disobedients, protesters and civil rights legend Hosea Williams. Hosea was Dr. Martin Luther King Jr.’s field general, and was arrested more than a hundred times in Alabama and Mississippi for demonstrating in the 1960’s. So, when I read that Reverend Fred Shuttlesworth was ailing with a brain tumor, and had decided to quit preaching, I was reminded that, Fred Shuttlesworth won for us one of the biggest cases of all.

The case is famous and often cited by first amendment adult entertainment lawyers. Shuttlesworth v. City of Birmingham was decided by the United States Supreme Court on March 10, 1969. Fred Shuttlesworth was a famous Alabama preacher who sought to register voters in Alabama. He survived the bombing of his house, a beating by a mob of angry racists and numerous arrests for his civil rights activism. He moved to Cincinnati in 1962.

Reverend Shuttleworth had been convicted of violating a Birmingham, Alabama ordinance, which made it illegal to participate in a public demonstration without having first obtained a permit from city authorities. He had requested a permit and had been denied it. The U.S. Supreme Court reversed his conviction and ruled that the permit law, itself, violated the First Amendment, as a prior restraint, because it did not have narrow objective and definite standards to guide the licensing authority. This requirement, itself, has won us more cases than any other argument. Even more importantly, the court also found that Reverend Shuttlesworth had the right to ignore the permitting scheme and demonstrate without the permit.

The Shuttlesworth case allows adult businesses to sometimes open and begin operation without seeking licensing first, or after being denied licensing, when the licensing scheme violates the First Amendment. Of course, the trick is to guess correctly that the law is unconstitutional. The Reverend Fred Shuttlesworth’s last sermon will be at Cincinnati’s Greater New Light Baptist Church on March 18, 2006, his 84 th birthday.

In Billings, Montana, on December 2, 2005, a Federal Judge sentenced a man to five years in prison for conspiring to distribute obscene videotapes. The Associated Press reported that Sanford Wasserman, 65, maintained his innocence before sentencing and told the judge that he resented being a poster child for the Bush administration’s crusade against pornography. The videos were sold through mail-order catalogues. The Associated Press called the five-year sentence “one of the stiffest imposed in a recent obscenity case”.

Although rarely talked about, one of the main focuses of the federal government’s war on adult sexually explicit material includes the attempt to keep mainstream TV from daring to show nudity or sexually explicit themes.

After Janet Jackson had her wardrobe malfunction at the Super Bowl Halftime Show, the Federal Communications Commission (FCC) at the urging of the right wing intolerant religious movement, sought to raise the fines for similar incidents from a maximum of $32,400.00 for each showing to $500,000.00.

The federal government also wants the cable TV industry to be included. Interestingly, the cable industry is regulated differently from mainstream television. So far, the U.S. government has less power to force cable content producers to bow to their demands.

On November 29, 2005, the Senate Committee studying the issues of raising the fines and including the cable industry met without reaching a consensus. Senate Commerce Chairman, Ted Stevens (R-Alaska) said the committee could not consider legislation because the full senate is too divided on it. A bill which raised the fine that the FCC can levy on broadcasters to $500,000.00 for airing an indecent program has already passed the House of Representatives 389 to 38; and is pending in the Senate. FCC Chairman, Kevin Martin stands with the “intolerants” and seeks to increase censorship powers. Kyle McSlarrow, the C.E.O. of the National Cable and Telecommunications Association, said that any government mandate, in his view, is very clearly a violation of the First Amendment and the government should not intrude on what cable TV delivers and how it is delivered. Even Walt Disney Company believes indecency standards should be voluntary and not mandatory. Another meeting is scheduled for January 19, 2006 to reconsider the matter.

On December 8, 2005, the Third Circuit Court of Appeals overturned the dismissal of federal obscenity charges against Extreme Associates, Rob Black, and Lizzy Borden. As you may remember, the trial judge, Gary Lancaster, had determined that the sale of even obscene material, ordered over the Internet and delivered to the purchaser’s home violated the Right of Privacy that had been established by the U.S. Supreme Court ruling in Lawrence v. Texas. The trial court had found the right of a customer to posses even obscene material to be a “fundamental” right, which necessarily allowed the customer to get the material, somehow. Here, the Third Circuit, in overturning the dismissal of the charges, did not rule on the merits of the matter. Instead, they found that under the Agostini Doctrine, a trial court has an obligation to follow applicable Supreme Court precedent and not create its own. Here, said the Third Circuit, the trial court, itself, extended the Lawrence ruling to this issue, which had not been extended by the Supreme Court. Interestingly, the 1969 U.S. Supreme Court case of Stanley v. Georgia, found that regular people have the right to posses even obscene material in their homes, and that the right is a fundamental right. Legendary first amendment lawyer Louis Sirkin, of Cincinnati, is lead counsel in the case. I spoke with him yesterday and he told me that he expects to seek a rehearing from the full Third Circuit Court of Appeals (en banc). It will likely be a long time before the case goes to trial, if ever.

Lastly, in a story from newsman Doug Thompson. On December 9, 2005, he reported that in November, Republican congressional leaders, filed into the Oval Office to meet with President Bush about the extension of the U.S.A. Patriot Act. Several provisions of the Act, passed immediately after the 9/11 terrorist attacks, took away the right of privacy of this nation’s citizens in an appalling way. G.O.P. leaders told Bush that his hardcore push to renew the more onerous provisions of the act could further alienate conservatives still mad at him because of his botched attempt to nominate White House Counsel, Harriett Miers to the Supreme Court. “I don’t give a goddamn” Bush retorted. “I’m the President and the Commander of Chief. Do it my way.” When told by one aide at the meeting that there is a valid case to be made that these provisions undermine the Constitution, Bush screamed back: “Stop throwing the Constitution in my face.” “It’s just a goddamned piece of paper.” Then, on December 16, 2005, the Senate refused to renew or make permanent those controversial provisions.

As we celebrate this holiday season, we are reminded that like it or not, we are between the crosshairs of a federal government intent on making us all live a life that they think we should live. You who take the brunt of government attempts to destroy your lives and impose censorship on your customers, are heroic. Thank you for letting me be a part of the fight for freedom, with just a goddamned piece of paper as my weapon.

Alan Begner is a world-famous first amendment attorney, especially in relation to the adult entertainment business since 1982. Begner is also an adjunct professor of law at John Marshall Law School in Atlanta.