Saturday, April 9, 2011

Clarksville jury clears porn store of obscenity

Posted By on Sat, Apr 9, 2011 at 6:22 AM

xmart.jpg
I heard this morning from John Wesley Hall, one of the attorneys for three clerks at X-Mart, the porn store in Clarksville, who were cleared by a Clarksville jury yesterday of criminal charges for selling obscene merchandise, hard-core movies featuring the likes of anal intercourse.

I thought some of Hall's assessment of the law and "community standards" in Arkansas were worth passing along.

It was the second obscenity rap Hall has helped beat. He now has a win in western and eastern Arkansas. Tell me NWAers and LAers, would it be any different in your part of the state?

FROM JOHN W. HALL (edited for length and clarity)

What is far more significant [than the verdict] is that this is the second acquittal in seven months in Arkansas, in only two trials. In Forrest City, there was a week long trial of a far different nature ending the Friday before Labor Day that was a bitter crusade against porn that also resulted in an acquittal. These two acquittals, nearly 200 miles apart in rural Arkansas so close in time are a near revelation about community standards in Arkansas.

I made an impassioned plea in my motion for a directed verdict that the obscenity statute was passed in 1981 based on the 1973 Miller case from the U.S. Supreme Court. That was before VCRs were in every home and the adult industry exploded from a couple of movie theaters here and there to nearly every city of any size having a store that sold or rented adult materials. Then came DVDs, then came DirecTV and Dish Network with hard core channels available to those who wanted to buy (DirecTV's is ch. 590-597), then came the Internet. I put into evidence on an offer of proof that there are 33.6 million homes with satellite television; broadband via cell phone (according to ATT ads) covers 95% of Americans, and according to a CNBC report online, Arkansas is 6th in the nation for Internet porn. (Utah is No. 1). There are dozens of free hard core porn sites and an infinite number of subscription sites; I offered to show the court the free sites from the laptop in the courtroom. (None of that got to the jury.)

My argument was a free market and libertarian argument that the fact this store has been in existence for 5 years shows the community standard because, if it wasn't viable, they'd have closed and moved elsewhere. And, the free market alone should determine what the community standard is. If an adult Arkansan wants to buy sexually oriented material involving other consenting adults, it is not the state's business to tell us what we can or cannot buy to watch at home. Therefore, under the Arkansas Constitution and the First and Fourteenth Amendments, extrapolating from Jegley v. Picado and Lawrence v. Texas and other cases, and the fact the Arkansas Constitution would be interpreted more broadly (and see the Cole case from Thursday reaffirming Jegley), it should no longer be a crime in a free society to sell adult sexually oriented materials to other consenting adults in 2011.

My motion was denied. However, essentially that same argument was made to the jury in closing argument just 30 minutes later. They deliberated about 90 minutes.

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