Facebook Twitter

Even places of sleaze have rights

SHARE Even places of sleaze have rights

The problem is as old as Ovid, as old as Chaucer: What can society do about dirty pictures and dirty books? A couple of weeks ago the Supreme Court once again turned its back on the issue by refusing to hear a case from Aurora, Colo.

The facts in Z.J. Gifts v. City of Aurora were not in dispute. The company operates a small chain of stores that deal in adult lingerie, magazines, videotapes and "novelties." It was implicitly agreed that the movies and publications, for the most part, were "indecent" and "pornographic," but not "obscene."On Nov. 19, 1993, the city issued a business license for Z.J. Gifts to open a store to be operated under the name of Christie's in a local shopping mall. When word got around that Christie's would be X-rated, the city council promptly amended the zoning code on "sexually oriented businesses." Christie's could set up shop in an industrial zone, but it could not do business in the Grenada Park Shopping Center. The idea was to put the store out of business before it got into business.

The company protested that the ordinance abridged its rights of free press. U.S. District Judge Richard M. Matsch agreed, and entered an injunction against enforcement of the law. On appeal, the 10th U.S. Circuit reversed, and Christie's tried to persuade the high court to take the case.

This is the kicker: At Christie's, the dirty movies and lascivious magazines are for off-premises consumption only. No peep shows. No nude dancers. No live demonstrations of sexual acts. It is the difference, as Judge Matsch pointed out, between a package store and a bar.

Counsel for Christie's argued that the difference is critical. The 10th Circuit, disagreeing, viewed the distinction as "constitutionally insignificant," but I wonder. This case struck me as a very close one.

Freedom of speech and freedom of the press are cherished civil rights, but they are not absolute rights. State and local governments, in common with the federal government, may punish obscene speech. They may regulate broadcasts when children are likely to be watching. They may prohibit sexual conduct, such as indecent exposure, but there is one thing governments may not do: They may not prohibit sexual speech.

I hope not to be misunderstood. Some years ago I wrote a book on the pornography racket. Postal officials introduced me to stuff I had never seen before and hope never to see again. Obscene materials impress me as a kind of fungus, rotting the fabric of society. The hard-core films are plain and simply evil.

But a vast deal of the girlie magazines and XXX-rated movies cannot fairly be classified as obscene.

I was disappointed, but not surprised, when the Supreme Court refused on Oct. 5 to review the Aurora case. It presented no towering questions of First Amendment jurisprudence. All the same, it involved fundamental principles of free speech and free press. These principles have to be defended in Aurora, Colo., and everywhere else.