CINCINNATI - First Amendment attorneys H. Louis Sirkin and Jennifer M. Kinsley have, within the past week, filed two lawsuits on behalf of Ohio residents and workers, seeking to overturn the requirement in the 2006 Adam Walsh Act that states beef up their sex offender registries.
The primary motion, involving the manager of the Hustler Hollywood Cincinnati location, identified only as "G.B.," is in the form of a Motion for Declaratory Judgment, since no adult vendor has yet run afoul of the new law, designated Senate Bill 10 (SB 10), which was set to go into effect last January 1.
"G.B., in her capacity as a manager and in response to Senate Bill 10," the complaint reads, "is resistant to any suggestions or efforts to expand the store's product selection or variety. Based upon strong sales figures, she believes there is a demand in the marketplace for a larger selection of sexually oriented adult material. A primary reason G.B. does not want to expand the product line to include additional merchandise is her fear of being prosecuted for pandering obscenity under Ohio Rev. Code §2907.32 and thereafter labeled as a sex offender under Senate Bill 10."
"G.B.'s fear of prosecution is grounded in actual enforcement activities throughout Hamilton County," the complaint rightly notes. "Hamilton County has a history of aggressively prosecuting sexually explicit materials, including, for example, the 1990 prosecution of the Contemporary Arts Center and its director on charges of pandering obscenity, regarding the installation of Robert Mapplethorpe's The Perfect Moment exhibit. In addition, various Hustler outlets have been the target of obscenity prosecutions and investigations in each of the past four decades. It is relentless prosecutions like these that inspire justified fear in individuals like G.B., whose work may come under unpredictable criminal scrutiny at any moment. To now have sex offender registration, verification, and arbitrary residency restrictions attach as a result of a single charge of obscenity understandably and exponentially amplifies that fear to a paralyzing and silencing degree."
Indeed, were G.B., a Kentucky resident, to be convicted of "pandering obscenity" by selling an adult DVD or magazine to an undercover cop, she would be forced to register as a "Tier I" sex offender for a minimum of 10 years, and would be prohibited from residing "near areas where children are likely to be present" - which, in a populous area like northern Kentucky, is just about everywhere. Worse, her residence address would show up on various "Megan's Law" police databases, and community activists could target her home for protests and unwarranted surveillance. It is also likely that the woman's children would be expelled from the Catholic school they currently attend, because the school does background checks on its students.
"Everyone who sells media material, whether it's a clerk at a Barnes & Noble or a clerk at an adult video store, should be concerned about this," Sirkin told the Associated Press.
"Tier I classification is mechanically applied, without consideration of the likelihood of re-offense, nor the severity of the crime's circumstance," the lawsuit further charges. "No hearing is afforded an individual wishing to challenge sex offender classification. The State is excused from proving any likelihood of re-offense to justify the additional registration attachment. The absence of a meaningful opportunity to challenge tier classification violates the Fourteenth Amendment Procedural Due Process guarantee. This is particularly the case with regard to obscenity convictions that implicate the First Amendment right to free expression."
The suit seeks to have the U.S. District Court for the Southern District of Ohio declare that "Ohio's registration, verification, and residency requirements for individuals convicted of pandering obscenity, Ohio Rev. Code §2907.32, are unconstitutional, both facially and as they may be applied against Plaintiff."
The second suit is on behalf of "M.S.," a former Indiana resident who moved to Ohio eight years ago to open his own real estate business. In Indiana, he had been convicted of having sexual relations with an underage girl whom he met over the Internet, pleaded guilty and voluntarily participated in therapy through the Indiana Department of Probation and Parole.
As a person guilty of Internet child exploitation, M.S. was required to register as a sex offender for 10 years, a term that will expire in 2010 - except that under SB 10, as a "Tier II" offender, that term will be extended by 18 more years, during which time his personal information will be available to anyone over the Internet. And since M.S.'s business is in his home, that business address will also be listed as the address where a sex offender lives - which might just possibly adversely affect his ability to sell real estate, since the law prohibits him from living "within 1000 feet of any school, daycare, or recreation facility where children are likely to be present." The new law would also require M.S. to re-register as a sex offender in any county nationwide where he might be staying for three days or more.
Sirkin and Kinsley also argue that for M.S., SB 10 is an "ex post facto law," since it imposes requirements on him that were not in effect at the time of his conviction. Ex post facto laws are generally unconstitutional under Article I, Sec. 9 of the U.S. Constitution. The law also creates or could create conflicts between state laws in Ohio and Indiana. The attorneys seek to have SB 10 declared unconstitutional, and the state enjoined from enforcing it.
"We drew a judge who's on senior status," Kinsley noted, "which generally means the case will progress a little bit slower. As of now, we have heard nothing from the state, although we have served them with a lawsuit and they're aware of it."
Indeed, Jim Gravelle, a spokesman for the Ohio attorney general's office, told the Associated Press, "We are prepared to defend the constitutionality of the law."