- The Washington Times - Tuesday, July 22, 2003

A lawyer who specializes in defending the distribution of sex images, including by Larry Flynt’s Hustler magazine, has moved to overturn Ohio’s obscenity law on the basis of the recent Supreme Court decision legalizing homosexual sodomy.

“Practically all choices made by consenting adults regarding their own sexual practices [are] a matter of personal liberty and thus beyond the reach of state control,” H. Louis Sirkin told Common Pleas Judge Richard A. Niehaus in Cincinnati in presenting his view of the Supreme Court’s 6-3 June decision in Lawrence v. Texas.

Judge Niehaus reserved decision on Mr. Sirkin’s 15-page motion and allowed the trial of Shawn Jenkins of Cincinnati to enter a second day yesterday. Mr. Jenkins was arrested in October 2001, but an earlier trial had been postponed after he arrived at court drunk two days in a row.

Mr. Jenkins faces up to a year in prison on one count of pandering obscenity at his Tip Top Magazines store, where an undercover sheriff’s deputy, Sgt. Matt Guy, bought the videotape titled “Maximum Hardcore Extreme, Vol. 7.”

Citing what the law calls a “due process right to privacy,” Mr. Sirkin noted high court references to bedrooms and sanctity of the home in the sodomy decision and other rulings — including on abortion, contraception and parental rights.

This, he asserted, must include that the right to own obscene material at home includes a right for others to sell such materials. The suit is among the first to reach beyond homosexual issues in using the high court’s June 26 decision barring states from criminalizing “sexual practices common to a homosexual lifestyle.”

“[Those rights] have moved out of the marital bedroom and into the public sphere of commercial interactions and private interactions between consenting adults,” Mr. Sirkin said, citing Justice Antonin Scalia’s analysis that the sodomy decision calls into question state laws against obscenity as well as bigamy, homosexual “marriage,” adult incest, prostitution, masturbation, adultery, fornication and bestiality.

Hamilton County prosecutor Mike Allen told The Washington Times in a telephone interview yesterday that he expects the motion to fail, but that he takes it seriously because it had been filed by Mr. Sirkin, whose most recent high-visibility case was his persuading the high court last year to strike down the Child Pornography Prevention Act of 1996.

“It’s our position that [the ruling] doesn’t apply to the seller in obscenity prosecutions,” Mr. Allen said. Mr. Jenkins, he said, runs a store that sells videos and is not a purchaser viewing them at home.

“I can’t remember the last time in this county a person was prosecuted for owning an obscene videotape. It’s the person who’s selling or distributing, or pandering, if you will.” This suggests that Mr. Sirkin is distorting the sodomy ruling.

“It’s not surprising that Lou would be the first to invoke it because this is his area of expertise. We respect Mr. Sirkin’s legal acumen, but the Texas sodomy decision just is not applicable.”

The prosecutor said the Tip Top arrest was the fruit of an investigation by the office of Sheriff Simon Leis Jr., a former prosecutor who throughout his career has pursued Larry Flynt, often encountering Mr. Sirkin as the pornographer’s defense lawyer all along the way.

Mr. Sirkin argued in court that the videotape, which does not feature homosexual activity, is not obscene. As is usual in obscenity cases, a jury will decide whether the material violates community standards of decency.

On Monday, assistant prosecutor Brad Greenberg told the jury that the $15 videotape qualifies. “Everybody has a normal, healthy interest in sex, but … this crosses the line.”

By raising the federal constitutional issue at trial, Mr. Sirkin preserved the right to appeal through the Ohio courts and all the way to the U.S. Supreme Court should Judge Niehaus turn him down, as Mr. Allen predicts he will.


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