LOS ANGELES—Attorney John Weston, one of the leading lights in the adult industry's fight to preserve its First Amendment rights—in fact, the industry's very right to exist at all—died on Friday, September 11, reportedly surrounded by friends, family and his law partners G. Randall Garrou and Jerome Mooney. Weston had been ill for several days due to cancer, and the decision had been made not to take extraordinary lifesaving measures if he succumbed to the disease. He was 75 years old, and just two weeks shy of his 76th birthday.
"We had word in the [First Amendment Lawyers Association] discussion groups about a week ago that there wasn't going to be any serious attempt to revive John," reported First Amendment attorney Reed Lee, who often consulted with Weston. "I was on FALA conferences with him about a month and a half, two months ago, and he seemed okay. In fact, he was participating more when our deliberations went online; he seemed to be one of the people that was stepping up, but yes, as of about ten days ago, we got word on the mailing list that he was in pretty grave condition, and as of about a week ago, it was said that he was comfortable, he was in hospice, but there's not going to be any attempt to revive him. I understand it was cancer, but I don't know any details beyond that."
Weston was involved in some of the most important First Amendment cases in adult industry history, with one of the earliest (1975) being Young v. American Mini-Theaters, which involved two zoning ordinances passed in 1972 by the city of Detroit, which prohibited adult businesses—in this case, small movie theaters—from being within 1,000 feet of other "regulated uses" (read: adult businesses) or within 500 feet of a residential district. Although the Sixth Circuit Court of Appeals reversed the district court and found the ordinances to be unconstitutional restrictions on speech, the city appealed, and even after Weston's argument before the U.S. Supreme Court to maintain the Sixth Circuit's overturn of the ordinances, the high court upheld the restrictions in a 5-4 decision.
It wasn't long after that, that Weston went up against an attorney who would eventually become his law partner, Clyde DeWitt, a long-time legal columnist for AVN.
"In 1979, I was in the DA’s office in Houston, charged with defending civil suits against the office or its members," DeWitt recalled. "One day the boss dropped three of them on my desk, all challenging a new Texas obscenity statute. At the first appearance, I was 'volunteered' by the judge to be 'lead counsel' for the group comprised of dozens of district and county attorneys around the state, most of whom I never had met. All I could remember about obscenity law was Miller v. California, a vague recollection from law school.
"So, here I am at the defendants’ table, across from the plaintiffs’ table, populated by an attorney from Dallas who I vaguely knew, alongside Arthur Schwartz and a much younger, immaculately dressed attorney. 'This must be the guy from Beverly Hills,' I thought to myself. After a bit of back and forth with the judge, my next thought about him was, 'Holy shit; this guy really knows what he’s talking about!'
"The case went on for a year or so. John and I became friends, resulting in me leaving the DA’s office to open a Houston branch office of sorts for John’s firm—though unbeknownst to John, I was fully intending to engineer a way to move to California, which I did a few years later.
"For the next 23 years, I worked with John and was continually amazed at his brilliance. He accomplished things that absolutely amazed me, both in court and politically, through city councils and the like.
"Nothing could compare with the atmosphere in the office when preparing a U.S. Supreme Court case. I was around for five of the seven cases that John argued before the High Court—amazing experiences."
DeWitt left the Weston firm in the early 2000s, but he retained a fondness for his former partner.
"Caring, considerate and a wonderful friend," DeWitt recalled. "Articulate, analytical, observant, brilliant and never went off half-cocked. A huge loss to the profession, to all of us and to the First Amendment."
In a similar vein to Young, Weston also argued the case of Brockett v. Spokane Arcades (1984), an adult arcade business targeted by a Washington state "moral nuisance" ordinance that would have shut down virtually any adult business "where lewd films are publicly exhibited as a regular course of business" or "in which lewd publications constitute a principal part of the stock in trade." Again, despite a Ninth Circuit opinion in Spokane Arcades' favor, the Supreme Court ruled that with minor changes—most notably, it rejected the state's claim that a prurient interest could be the equivalent of merely inciting a lustful response, and held that materials which only elicit a normal and healthy lustful response were constitutionally protected, and that the Ninth Circuit should have given the state the opportunity to obtain a statutory construction to limit the definition of “prurient interest” consistent with the Supreme Court's ruling. As a result, the state agreed not to enforce the statute and Spokane Arcades was determined to be the prevailing party.
Four years later, Weston took up the cause of Fort Wayne Books, which the state of Indiana had charged under the Racketeer Influenced and Corrupt Organizations (RICO) statute for allegedly "engaging in a pattern of racketeering activity consisting of repeated violations of the state laws barring the distribution of obscene books and films," and sought to forfeit the business' location and contents. Although the Indiana Court of Appeals reversed the state's civil forfeiture action, the Supreme Court again largely sided with the state, ruling that there was no bar to considering obscene materials as a RICO predicate but, importantly, that that pretrial seizures of adult materials under RICO laws was a facial violation of the First Amendment. However, since the forfeiture had been authorized by a civil action, the high court remanded the case to the district court to establish whether the store's materials were in fact obscene.
Another case that really put Weston on the First Amendment map was his defense of three adult businesses and their owners in FW/PBS v. City of Dallas, which targeted the city's ordinance regulating "sexually oriented businesses," which were defined to include "adult" arcades, bookstores, video stores, cabarets, motels and theaters, as well as escort agencies, nude model studios, and sexual encounter centers—the first "comprehensive" ordinance of its type, and one which plenty of other municipalities quickly moved to copy. Notably, however, no one else had argued an ordinance case like this in the Supreme Court prior to FW/PBS, and Weston's brief to the hight court relied solely on an extrapolation from prior Supreme Court decisions.
"This was a licensing case where the government just thought it could leave licensing discretion in the hands of public officials," First Amendment attorney Reed Lee, a friend of Weston's, summarized. "John was one of the people who was applying preexisting First Amendment law; they weren't making this up out of the blue, but they were applying the law, formulating cases where judges were especially sensitive to the fact that licensors might abuse their discretion in order to engage in content control. John and a very small number of others were instrumental in stepping forward and saying, 'Hey, judges, here's another one,' and judges by and large had very little trouble saying yes, and it's the reason why we have such powerful protections on adult use licensing provisions."
But it was a hard-fought case, and in 1997, in another Texas ordinance dispute, this time in Houston, U.S. District Judge Nancy Atlas ruled against the adult businesses, even as she had no quarrel with the Supreme Court's binding precedent from FW/PBS, but nonetheless allowed the city of Houston to put its similar ordinance into effect—a ruling that Weston appealed to the Fifth Circuit Court of Appeals.
Similarly, Weston represented bookstore chain owner Ferris Alexander, who was charged under RICO with distributing obscene materials and found guilty in Minnesota District Court, which ordered him to forfeit his businesses which were worth millions of dollars, and sentenced him to a six-year prison term. Weston argued before the Supreme Court that forfeiting Alexander's businesses and contents constituted a "prior restraint" on Alexander's speech—a First Amendment violation—and that the forfeiture constituted an "excessive fine" under the Eighth Amendment's prohibition on cruel and unusual punishments. The high court, in Alexander v. United States, refused to deem the forfeiture a prior restraint, but remanded the case to the district court to determine if the business forfeiture (and the separate $100,000 fine the court had imposed) were excessive under the Eighth Amendment.
Another First Amendment case that Weston argued before the Supreme Court was City of Erie v. Pap's A.M., the appellant having been the owner of Kandyland, a strip club where the dancers performed entirely nude even though the Erie City Council had passed an ordinance requiring dancers to wear at least pasties and a g-string. Pap's had won at the Pennsylvania Supreme Court, but the U.S. Supreme Court reversed, ruling that Erie's restrictions had only a "minimal effect" on the dancers' "erotic message."
Finally, the issue of "adverse secondary effects," the government claim that the existence of adult businesses in certain locations can adversely affect the lives and property values of those residences and businesses surrounding the adult venues, was central to the case of City of Los Angeles v. Alameda Books (2002). In a 5-4 decision as a result of Weston's argument, the Supreme Court issued breakthrough new, industry-favorable guidelines for analyzing whether the City in fact could rely on a 1977 study that the city had had done to uphold the ordinance. A four-justice plurality actually increased the burden on the prosecution by saying that cities could not rely on “shoddy evidence” of secondary effects, and established a three-part test whereby adult businesses could challenge the asserted “studies” cities relied upon. The four dissenters indicated that they would have found the zoning ordinance entirely unconstitutional without need for remand. Justice Kennedy, whose concurring opinion has universally been held to be the "holding of the Court," established an industry-favorable new “proportionality” test which required cities to prove that any adverse impact of an adult zoning law on expressive businesses was significantly outweighed by its impact in preventing real and proven adverse secondary effects. Later legal actions beginning in 2008 relied on statements contained in both Justice Kennedy's concurrence as well as the four justices' dissent, which allowed Clyde DeWitt, who was then handling the case, to have the ordinance struck down in summary judgment—until the Ninth Circuit remanded the case yet again.
All in all, that's quite a record—but it's hardly all that Weston accomplished. He also represented Los Angeles strip clubs in fighting an ordinance that would have required a six-foot distance between dancers and customers, prohibited placing tips in dancers' g-strings and banned VIP rooms—and even spearheaded a successful referendum against the restrictions, the success of which impelled the City Council to repeal the restrictions—something the club industry had never managed to do before; in 1970, he brought one of the first lawsuits in California to attempt to legalize oral sex acts between consenting adults; testified before the Meese Commission; and helped First Amendment attorneys J. Michael Murray and Paul Cambria in their attempt to get a court order declaring the Odyssey Group release Body and Soul preemptively declared not to be obscene in Tennessee—a move which sadly failed. Weston also fought to keep New York City's anti-adult zoning laws from applying to strip clubs in the city.
Importantly, Weston also represented several adult studios and studio heads in the Traci Lords "child pornography" case, where he not only prevailed in the Ninth Circuit in getting a favorable ruling on the issue of “intent”—that is, though the studios had released tapes with the underage Lords, they had had no intent to create child porn—and he managed to get the entire industry to destroy all the product that was then out there showing the under-aged Lords, thus showing that the courts could rely on the good faith exception to the law. Had the studios not recalled and destroyed the Lords tapes, the likely result had they not done so would have been the forfeiture of a great many businesses—no small feat.
Also of interest: Weston was approached by the producers of the 1997 film Lolita, starring Jeremy Irons, Melanie Griffith, Frank Langella and Dominique Swain, and asked to look the film over to make sure those creators hadn't inadvertently run afoul of the federal recordkeeping and labeling laws (better known as 2257) in the film's sexier moments.
"Every young lawyer dreams of having significant impact on both the law and the people affected by the law," observed First Amendment attorney and Free Speech Coalition Board chair Jeffrey Douglas. "John Weston achieved that dream. For over thirty years, John dominated the law of sexually explicit expression and commerce. His numerous cases before the United States Supreme Court, as well as state and federal trial and appellate courts throughout the country, aggressively and effectively protected the concept of free expression as well as the lives of the people engaged in the entire adult stream of commerce.
"He mentored many of the lawyers currently dominating the field today. He was always better prepared than the lawyers on the other side, always more knowledgeable about the law and the facts, and his litigation was in pursuit of a vision of a country free of government intrusion into what people think, feel and express.
"Few people in any profession can have the effect he had on the world in which he lived. As has been repeated frequently among his peers, John Weston was a giant."
Reed Lee had a similar view.
"John for many years was the central person litigating and in a larger sense organizing the litigation around adult use zoning and adult use licensing, to say nothing of obscenity defenses when obscenity cases were still an important threat. At the moment, they no longer are, and that's in large part due to the defense that for many, many years John was central to.
"The onslaught from conservative forces against the adult entertainment industry took a lot of different forms. When it was primarily an attack of obscenity prosecutions, there were lawyers who primarily did criminal defense work and they could step up and do obscenity defenses. Obscenity, in many respects, is a very different kind of crime, different kind of allegation, and lawyers who were even older and more established than John in the early days, I think John helped them adjust to the features of obscenity prosecutions that were special, but then, the challenges moved to civil, government regulation cases, where a criminal defense background wasn't sufficient, and John was really one of the leaders who was able to help the industry's defense counsels make that transition, sometimes very effectively."
Attorney Allan Gelbard, who recently won victories for several actresses before the California Labor Commission, also had good words for Weston which he posted on his Facebook page.
"John H. Weston was a true First Amendment hero," Gelbard wrote. "He was also one of the most erudite, well-spoken and most dedicated attorneys I have ever had the pleasure to know. ... [W]hen I was a baby lawyer, just out of law school, with no practical training or background, John took the time to offer me advice and his wise counsel on subjects large and small. That wise counsel, and friendship, continued up until yesterday, when he passed.
"I spoke with him just a few weeks ago on a case I'm working on now and his counsel was, as always, thoughtful and invaluable. I had no idea he was unwell, and when he disclosed what he was facing, he was—as always—realistic, brave and undaunted.
"Nobody lives forever. The true measure of a man is what one does in his time, and what he leaves behind for the rest of us. On both counts, John H. Weston was a giant."
Weston's law partner Jerome Mooney expresses similar thoughts.
"John Weston was one of the nation’s most distinguished First Amendment attorneys," Mooney told AVN. "He spent five decades fighting for the important constitutional principle that speech should not be prohibited based upon its message. His lifelong battle against government censorship and government overreach helped establish the firm principle that the expression of ideas, no matter how distasteful, must be treated fairly. John argued seven cases before the United States Supreme Court, and scores of other appellate cases in state and federal courts nationwide, establishing much of the current case law regarding adult media. Through his efforts he made the freedom of all Americans greater and more secure. He was a great friend and a wonderful human being."
But it's not only attorneys who liked him; clients did as well—such as former Caballero Home Video owner Al Bloom, now with CalExotic Novelties:
"John Weston represented Caballero Home Video for First Amendment matters for many years. He was my personal attorney representing me when I was indicted in the MIPORN federal bloodbath in Florida. He also represented me in federal indictments in Kentucky. John got me through both matters with no convictions in both cases. I spent countless hours with John either in person or on the phone, and traveling to either Florida or Kentucky.
"John always told me that I 'was probably the only client that read every document from the government and from his office.' We collaborated on many motions—he on the legal issues, and my input as a common man.
"John was a man of strong conviction and character, and he always made me and my family feel safe and well protected. During the 'golden age' of adult movie productions, John was not only a First Amendment scholar, but also a giant among attorneys specializing in the First Amendment.
"He was a great man, and the adult industry has lost a true friend and advocate."
No word has yet reached AVN regarding a memorial service for Weston, but when one is arranged, AVN will inform its readers of the time and place.
UPDATE #1: Weston's law partner Jerome Mooney contacted AVN with some corrections to its original story, which changes have been incorporated in the text above. AVN thanks Mooney for his help in getting the real story of some of Weston's victories before AVN's readership.
