AVN.COM LEGAL 200608 - Eenie, Meenie, Minie, Moe: Choose the Wrong Court and Away You Go

Readers of this column are painfully aware that the trench warfare in the battle against censorship is taking place at the retail level. First Amendment lawyers, including the author of this column and his law firm, spend an enormous amount of time battling adult zoning ordinances, three-foot rules, licensing regulations and the myriad other tricks used by local governments in an attempt to shut down adult bookstores, adult cabarets, and even to restrict the extent to which general video stores can offer adult titles.

If you are operating at the retail level, you certainly are aware of this; if you are in the manufacturing or distribution end of the adult-product industry, you should be extremely conscious of this, because much of your livelihood is still a function of the success of adult retailers in their battle against towns, counties, cities, townships and whatever other local governmental authorities are in the business of regulating retailers.

In any event, retailers and local governments square off in court on a regular basis. The topic of this article is on choosing which court to square off in.

The sharpest arrow in an adult-retailer's quiver is the First Amendment, followed not too closely by the equal protection and due process provisions of the Fourteenth Amendment (and for you constitutional nitpickers, the First Amendment is made applicable to the states and their subdivisions by the Fourteenth Amendment). You may recall from American History 101 that the Fourteenth Amendment was one of the three post-Civil War amendments, designed to dismantle slavery and de facto slavery. Since the Civil War amendments were enacted, the Supreme Court has done much to broadly interpret them to apply the Bill of Rights to everyone — a trend which was harshly curtailed beginning with the election of Richard Nixon in 1968, coupled with his promise to appoint "strict constructionists" (a euphemism for those who favor allowing the executive and legislative branches of government to get away with a great deal more mischief) to the Supreme Court and the lower federal courts. And while many very conservative justices and judges have been appointed by Republicans in the last 25 years, there still exist a battery of constitutional principles which help retailers stay in business.

There are two key pieces of legislation that help enforce these rights. The first is the Civil Rights Act of 1871, which gives both federal and state courts the power to remedy violations of civil rights by whatever means is appropriate. This includes, damages, injunctions, declaratory judgments, or whatever the court thinks will best work to undo the wrong committed by government. That puts some teeth in the Bill of Rights. But by comparison, Congress turned the Bill of Rights into a foamingly rabid dog when it passed the Attorneys Fees Award Act of 1976. Detractors of that legislation claimed it would create a flood of litigation and bankrupt cities. Time has proven that, while it did create a great deal of litigation, it has not bankrupted any cities. Rather, the law has accomplished exactly what its proponents predicted: Gross violations of civil rights have been punished, and local governments tend to be a great deal more careful in steamrolling peoples' individual liberties. Ironically, however, this remedy applies only to suits against subdivisions of the state, but not to the federal government.

There are weapons that can be deployed in the trench warfare against local government, such as state constitutional rights, and various state statutes which curtail the power of local government (and those are certainly not to be ignored), but the First Amendment right of free speech is most often the key that unlocks the door to adult retail businesses.

So where do you go to enforce these rights? Universally, a state judge has just as much power to enforce the First Amendment as a federal one. The question is the state judge's willingness to do so, and the answer to that is politics.

In most states, judges are put in place by popular election. A somewhat more enlightened approach is where the state judges "run against their record," meaning that they periodically must stand for election without opposition — a "yes" or "no" vote. If they are voted out, a replacement is appointed. Federal judges, on the other hand, are appointed for life. That is an extremely important component of the ingenious checks and balances system created by our national Constitution. That is not to say that federal judges are not political — how do you think they got appointed by the President in the first place?

So who do you want deciding whether the First Amendment gives you a right to operate your adult bookstore? A local/state judge who has lunch with the mayor once a month and is gearing up for a re-election campaign, or the federal judge downtown who is appointed for life? The answer, in most cases, is obvious. Other reasons why federal court is often a better place to be is because the judges do not have such a heavy workload, and they are generally equipped with a better array of staff attorneys and are more familiar with constitutional principles. State judges, on the other hand, are overwhelmed with criminal cases, auto accidents, divorces and business disputes, and frequently do not have the luxury of a staff comparable to that of federal judges.

This is not to say that state judges are unfair. Indeed, sometimes state court is the best place to file your case but, for a variety of reasons, usually not. The proof of this lies in the fact that local governments will invariably turn handsprings to try and accomplish whatever is necessary to create an obstacle for federal jurisdiction.

If a city or county has enacted an ordinance that stands to put you out of business, the answer is simple, you file a complaint in federal court seeking an injunction and attorneys fees, as well as damages if the city has kept you closed too long, and go forward. What can knock you out of federal court is lawyers. The quantity of federal civil litigation is dwarfed by that which takes place in state courts. As a result, an attorney selected at random is much more likely to be experienced in litigation in local courts than in federal ones. First Amendment specialists can tell endless horror stories of the nightmarish experiences of taking over cases which were filed in state court and, as a result, find themselves in front of some local judge who once was the mayor's campaign manager and in a courthouse which is two blocks away from the place where the plaintiff wants to open his adult business. As unfortunate as this is, it happens all the time.

The situation in which court battles over retail adult businesses are blown out of federal court much more frequently is where a new ordinance is enacted after the business is already in place, or the city tries to blow the dust off an old ordinance that nobody knew about. There is a case called Younger v. Harris that says that, as a general proposition, if there is litigation going on against you in state court where you are able to raise the objection that you want to bring in your federal lawsuit, the federal court loses jurisdiction to the state court. It is a matter of comity and deference to state courts.

What that all means in practice is simply that if the city passes a new ordinance and files a misdemeanor citation against your business or one of its employees for violating the new ordinance, you are out of federal court. The same is true if they bring a zoning-abatement action, or some other civil action to prevent you from violating the ordinance. There are even cases which stand for the proposition that an "order to comply" notice triggers Younger abstention. The reason for all this is because, for example, if you are charged with a criminal offense for violating the new ordinances you wish to challenge, you have the right, in defense of your criminal case, to claim that the ordinance is unconstitutional — exactly the same claim that you were seeking to make in federal court. The theory of Younger v. Harris is that the federal court system should not do anything to interfere with decisions of state judges.

Younger v. Harris is an enormously potent weapon for local governments. And they love it! It gives them enormous fire superiority.

For example, say the city passes an ordinance prohibiting any advertisement whatsoever of any sexually oriented business. You find this obviously disconcerting because a great deal of business is attracted by your daily advertisement in the sport section of the local fish rag. If you do it right, what you will do is file a lawsuit in federal court before the ordinance becomes effective, seeking an emergency injunction. This gives you immediate fire superiority. You stand to recover attorneys' fees; you have no risk of going to jail; and you are in the court where you believe you have the best odds of success. Looking down the barrel of an attorneys' fees award, the city might well back down. If not, you go forward with your litigation.

Compare that to the nightmare scenario, which happens all too often: "Screw the city — I'm going to run my advertisement anyway, and I'm not about to pay all that money to hire a lawyer!" What happens next is a catastrophe. The vice squad comes down and gives you a criminal citation for putting your advertisement in the Sunday rag. Now you are out of federal court because of Younger, and in front of the police chief's friend, the local criminal misdemeanor judge (who runs for election next year) and in a courthouse, which is down the street from your business. Worse yet, you have no right to recover attorneys' fees. When the judge throws out your challenge to the constitutionality of the statute, you stand to be tossed in jail, and the conviction might supply the basis for the revocation of your license. Not only can you not recover attorneys' fees, but the attorneys' fees you'll have to expend probably will exceed that of a federal lawsuit. All in all, this is a disaster.

The lesson to be learned by this is two-fold. First, be sure that your legal advice is coming from someone who knows enough about the First Amendment so that you can avoid dilemmas like the above. Second, keep your ear to the ground. Know what's cooking down at city hall. Subscribe to the city council agendas. And if the city passes an ordinance that catches you napping, close your business if you have to until you can get into federal court. Be the plaintiff, not the defendant!

Now, as reported elsewhere by Mark Kernes, Congress is trying to interfere with this, taking jurisdiction away from federal courts. The Religious Right thoroughly understands the above.

(Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since 1980. He can be reached through AVN's offices, or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)