Suburban Porn

The battle rages over a new porn shop in Milford, Conn.

Unlike the older sex shops, which are dark and dingy, [Penthouse Boutique] is big and brash and brightly lighted. Offering a ladies' night and marketing itself as a fun place for happy couples to shop, the store is part of a trend that has been spreading in suburbs from Louisville to Los Angeles in an attempt to take the industry out of the shadows and make it mainstream.

It has touched off a swirl of protests. Classical nude sculptures that were put up outside the store have been smashed. Pickets paraded at the gala grand opening, and the shop had to be emptied of much of its merchandise for several days as the government tightened its regulations on pornographic businesses…

The problem ? one similar to those faced by towns like Forest Lake outside Louisville or Avon outside Indianapolis or Jefferson near Charleston, W.Va. ? is that the local government is limited in restricting such businesses because of court rulings offering them some protection under the First Amendment.

Big problem, that First Amendment.

Comments

[Anonymous]

Big problem, that First Amendment.

Yes, when it is perverted to protect pornography against the fervent wishes of the overwhelming majority of American society...yes.

[Sean]

"...fervent wishes of the overwhelming majority..."

I think "foolish whines of an overly zealous minority" would be more accurate.

[Don]

It seems to me that consumers "vote" (in the most democratic of all institutions, the marketplace) overwhelmingly for porn.

However, pickiting porn brings back memories. Back in the early 80s, some buddies and I saw some Christian types pickiting the Pussy Cat theator in El Cajon. We went over to argue with them. I got tired of the argument, and a friend and I decided to go over to Hirem's Guns & Spirits to look at the firearms, while another friend stayed to argue (mindlessly on both sides) with the Christians. Some of the Christians congradulated themselves that they talked us out of going into the theator. Of course, we hadn't intended to go in in the first place.

[Jim Walsh]

The First Amendment: void where prohibited by law...

[Brad S]

Actually, my favorite headline from that Liberal rag in NYC is this:

"ARMAGEDDON COMING
Women and Minorities
to be Hardest Hit"

--NY Times

[Eric]

That's funny, Milford's just a few miles up the road from whre I live. I've been through the town on numerous occassions, and it never struck me as the kind of place that would lay claim to the title of Porn Capital of Connecticut. I wonder how many of the protestors are upset not as a result of being uptight prudes, but as a result of being taken aback by the absurdity of the spectacle in the context of its current location.

[joe]

"...the overwhelming majority of American society..."

The American porn industry has higher sales receipts than Major League Baseball, the NFL, the NBA, and the NHL combined.

[Brad S]

joe - I agree. In fact, porn has been the underlying driver for many advances in computer technology (digital photography, broadband, media players, etc). So, in a sense, porn has subsidized these improvements in people's overall quality of life.

[Brian]

Anon @ 1:02--

If the First were there only to protect the speech of "the overwhelming majority", it wouldn't really be necessary, would it?

[Ray]

One of the great things about the democratic process is that it inherently protects the individual. That is why we, the principled few, are more worried about who decides abortion, sodomy laws etc more so than we are about the actual issues themselves.

If the various issues that affect us on a daily basis remain in our local control, as much as possible, then we are all relatively free to live and die as we please.

All of that said to make the point that local communities should have the ability to define and subsequently zone their commercial enterprises. If a particular community sets certain standards of what the local populace deem appropriate, good for them. This system of local decision making allows for both San Francisco and Mayberry. If you don?t like one, move to the other. If you want to change one, get a vote started and get the community behind you.

To insist that the 1st amendment gives deviancy of every kind a legal umbrella is to misunderstand the very concept of individual rights. Pornographers have a right to print and publish their product (via the Federal govt.) but I can ban together with my neighbors and enact legislation to keep them off our town square just the same as we might ban together to keep a hog farm or trash fill out of our jurisdiction.

[fyodor]

Ray, ol bud,

How does the democratic process inherently protect the individual?

Also, I can see how a hog farm could have a tangible impact on those around it (though I would prefer addressing that impact in other ways than with the broad brush of zoning), but how does a sex shop affect others tangibly?

And, of course the 1st Amendment doesn't give one the right to deviancy that violates others' rights, such as rape. But it gives us all the right to any sort of expression, however much YOU might find it deviant....

[Brian]

Ray--

I completely agree. The distinction between protecting pornography (a federal free speech issue) and insisting that it be sold anywhere and everywhere (a local zoning issue) is important.

I don't read anything in Mr./Ms. Anonynous' comment above that indicates that they have made this distinction, saying that the First Amendment "...is perverted to protect pornography against the fervent wishes of the overwhelming majority of American society." I understand that to mean that this person believes that 1) pornography is not protected by the First, and 2) this lack of protection is predicated on the (perceived) opinion of the "majority".

I find such a majoritarian view of civil liberties a bit unsettling...all the more so, given that whether this is a true "majority" opinion is disputable, as has been pointed out already.

But if I've mischaracterized his/her opinion, he/she is invited to correct me...

[Don]

"One of the great things about the democratic process is that it inherently protects the individual."

Unless that individual is in the minority with less than 49% of the vote . . .

[Sean]

By your logic a community could decide to rezone to only allow a place of worship that was at least %70 jewish, and this would not violate anyone's freedom of religion.

Since there are likely other businesses in the area who are allowed to sell videotapes, book, magazines, clothing and various novelty items, it is not the right to sell in that area that is affected. It is the content of what is being sold. This content might not be liked by some, but too bad, don't go to the store. Had the community gotten together and rezoned it to a residential area, affecting all businesses the same, it would be a bit more reasonable. They didn't, however, they singled out one type of business for the content of legal products.

[Ray]

Don,

The democratic process does not neccessarily mean majority rules.

Don't get confused between a representative republic operating under certain democratic principles and a pure democracy.

Where foyo and many others go wrong is thinking that their right to free speech means I have to listen to them. Which takes this subject past one single amendment and to the basic premise that I've already broached, the right to self government. Simply stated, a matter is always settled at the most local level possible. Thus a pornographer's right to free speech is protected by the federal government but his right to speech does not mean he can simply "post" his speech, vulgar or otherwise, on any given street corner.

[Ray]

Sean,

I'm not sure I understood the verbiage you used to make your analogy but I'll try and clarify some things.

You can, constitutionally, through zoning say that no churches will be in this certain area or whatever but you cannot make an entire city or county off limits.

Most municipalities already have ordinances restricting how many signs can be on a street, size, wording etc for reasons of obvious taste and standards. This is not a restriction of anyone's free speech but a reflection of the local community's wishes on the matter.

Also, the same ability a community has to say no liquor stores within X amount of feet of a school is the same ability it possesses to impose certain decency ordinances. If the populace is not happy with such puritanical restrictions, they can move democratically to change it or move to a place that suits them.

Right of association and freedom of travel are pretty explicit in the Constitution as well.

[fyodor]

Ray,

Even if we grant the tortured logic that regulating signs to meet a community's "taste" isn't restricting free speech, under what rationale does "Penthouse Boutique" fail the test other than that it's for a sex shop?

Does freedom of association mean the right to say you can't be here? I don't think so.

Does self government give a locale the right to violate rights? Of course not. Your premise and conclusion are essentially one and the same! Rights are not dependent on where you are.

[Don]

Ray,

I agree with your point that free speech doesn't mean you have to listen. However, I don't like the idea of politicians, even at the most local level, preventing local businesses and residents from engaging in speech, commerce, etc. Frankly, I wouldn't want to live next to a porn store that displayed the wares openly in the window. But, I wouldn't want the local government shuting down the porn stores, either.

My personal experience with local government and the zoning, construction, and ecology laws is that the whole thing tends to be a Byzantine labyrinth of laws desinged to hamper local development while lining the purse of local government. As far as local involvement in government is concearned, for most it takes the form of being rolled over by a steamroller, metaphorically speaking, of course. Except for the case of some adept political player types, who seem to have the time, interest, and inclination to try to use the local government to their advantage (kinda like the Spaniards who used the Inquisition to their advantage by reporting their rivals).

[Sean]

Ray,

My point was this: You can zone so that no houses of worship can go up in a certain area, but to try and zone out one type of faith (lutherans allowed, Methodists no) you are running into constitutionally protected freedom. Similarly in this case, they are trying to say one type of video store (porn) is not allowed, but another (Blockbuster) wouldn't be affected by the same ordinance. They are zoning specific content, specific speech.

[Jeff Smith]

Sex! Oh no!

People having fun and not hurting anyone! Oh no!

People not minding their own f***ing business.
Blecch!

The people who protest things like this need to
get lives and need to learn that the very
foundation of a free society is learning to
live with the fact that other people make
different choices about how to use their
leisure time.

[nugget]

I understand that libertarians are against laws, but are you also against boycotts and protests and other acts of free expression? for example, I think the use of drugs are bad. If I nonviolently pursuade people to not use them am I wrong? If I buy a dixie chicks album and smash it publically or boycott their music, is that coercive?

Do you libertarians advocate porn or drugs or just people's rights to use it (which would recognize the right of people to advocate peacefully not to use those things)?

[Madog]

The silly thing is about 10 minutes down the road in the neighboring town of Orange is another similar store. And it's right on a main road in a commercial district.

[Brad S]

Hmmm. It all makes sense to me now. I guess people buy big, expensive houses in the suburbs to escape sex.

[Plutarck]

Putting what Sean said in different words, "Porn is ok, so long as you sell some nice children's videos too."

Huh? I have trouble getting past the sheer incoherance of it all. If they required that they keep their sex-related speach and ads inside, and not just out for god'n'everybody to see, that would be one thing (though not neccessarily acceptable), but this is simply changing the rules to apply not just to content, but to a particular store(s) in pretty much random ways. It would seem that if the "porn shop" just sold more copies of Pocahontas along with copies of Pokeherinherhantas and 12-inch black dildos, then it would be acceptable.

Wha? What kind of fucked up logic is that?

[Plutarck]

To clarity: I was attacking not Sean's posts or logic, but that of the tactics used to regulate and to seek to illiminate aforementioned house of commerce.

[kidding]

Nugget: No. Libertarians want everyone to be forced to use drugs and porno starting at age 12. No exceptions.

[fyodor]

"Big problem, that First Amendment."

Ach! More proof for Stephen Fetchet that libertarians are "anti-democracy"!

Nugget,

The thing you need to learn about libertarians is that they're fricken HUMAN BEINGS! I.e., aside from a common core political philosophy, they're (we're? I don't claim to be a purist) ALL DIFFERENT! And I wouldn't take any post on this blog to somehow be meant to represent the libertarian line or (especially!) to speak for all libertarians. I don't see anything in Mr. Alissi's post myself to indicate that he's "against" the rights of the protestors, but if a bit of satisfaction over the inability of the government to shut down the sex shop seeps out of his post, I would take that as a personal opinion of Mr. Alissi and not something that's somehow inherent in libertarian philosophy.

I would add, though, that it's fine by me, too!

[joe]

The Supreme Court case that upheld adult business zoning held that adult businesses could be regulated differently from other bookstores, theaters, etc because they had different impacts on the neighborhood - just as an asphalt plant can be regulated differently from a computer chip plant, because the noise, air pollution, etc of the former was different from the latter.

What's interesting is that the "difference" in the case of adult businesses is entirely defined by human behavior - mainly, prostitution, rowdy behavior, and declining property values. Based on Ray's comment at 6:50 about the requirement that the zoning code allow adult businesses to locate somewhere, I'd say he's read the case, as well. Ray, do you remember the name?

[Sean]

Nugget,

The article lists three forms of protest: Vandalism, picketing, and legislation. Boycotting and picketing are fine, but are you condoning the vandalism? As for the legislative approach, of course this is going to be largely denounced in a libertarian leaning forum.

From the article:
"Since Penthouse decided to move to town, lawmakers have rewritten the city ordinance defining a sex shop. Whereas it used to be that a store with 50 percent pornographic material met the definition, now any store made up of more than 30 percent of such material is considered a sex shop."

This business was specifically targeted, after it had complied with all existing legislation. This is not activity which can be supported by those that like freedom and limitation of govt to tell us how to run our lives.

[fyodor]

I suppose that should more properly read: "...I would take that as a personal opinion of Mr. Alissi and not something that he's necessarily claiming is somehow inherent in libertarian philosophy."

[fyodor]

Partial apologies to Noodle, I guess you're protest Jeff Smith's post. But again, the same principle applies, i.e., that this fellow is stating his opinion on the matter as a volitional human being, an opinion which he may or may not claim is based on libertarian philosophy.

[James]

Based on the market size of the adult entertainment industry, I would say these protestors make up a small minority. IF they are resorting to vandalism of property to make a point, then I think old Ashcroft needs to label them domestic terrorists.

Nugget, its about personal responsibility. Responsibility to make free choices and the responsibility to deal with the consequences of the free choices.

[Sean]

Joe,

While I'm not familiar with the case you mention (though I now have yet another thing to follow up on), nor do I wish to call into question the wisdom of our Supreme Court, something seems a bit odd about this type of decision. Sticking with my religion analogy, couldn't it be argued, based on the idea of differential effects on the community, that a Wahabiite Mosque would have a different impact on a neighborhood than a Quaker meeting house. Both could be of the same size and for the same purpose (worship). The Quaker house would likely cause no more impact than a Blockbuster Video, whereas the Mosque could potential result in gatherings, protests, uprisings, or riots after inflammatory speeches during services. Could one be zoned away but not the other?

Plu,

I understood what you meant, but I must ask, is Pokeherinherhantas an actual movie, or is that your brainchild? Either way, amusing.

[Anonymous]

I think a more sensational way to put it is:

"The problem ? ... the First Amendment." - NY Times

[Ray]

To simplify;

A burger joint wants to advertise their wares with a huge hamburger for their sign.

A porn shop wants to advertise with a huge sign depicting two people having sex.

By the logic put forth in some of these posts, it is violation the porn shops' 1st Amendment rights to ban such a sign i.e. if a hamburger is free speech, the sex sign is free speech.

But what about the community's ability to set standards of decency?

Also, it is extremely disingenious to compare obscenity laws to banning someone's worship. That is such a broad brush stroke, if the defense of unfettered obscenity had any real foundation it would not have to rest on such weak premises.

[Don]

"I think that what is missing here is the recognition of the freedom to individually and voluntarily come together to form communities. The communties might impose certain limitations on freedoms (which is different than giving up rights... you can always leave the community, or persuade others to change the rules by peaceful means.)"

OK. Say that I live in a nice place (it's in the country, and no one gives a rats ass what I do as long as I don't endanger tham). Then a bunch of ex-patriated yuppies move to this nice place, and then . . . they start enacting laws.

They won't let me shoot on my back porch anymore, they don't want me to walk about drinking corn whisky, they want me to get rid of all the old cars in my yard, yada yada yada.

Do I have to move somewhere else to get my free life back? What if they follow me there, and start imposing their laws again?

[Kevrob]

Y'know, many libertarians don't hold with zoning AT ALL, considering it to be intrusive government regulation on the right to own and use private property. One of the first articles I remember reading in Reason was a late 1970's/early 80's piece on how Houston TX didn't have it, and was doing fine. (I think they have since adopted zoning.)

Zoning is, to some a partial "taking of private property for public use" without compensation. Has the Supreme Court seen fit to agree with that expansive reading of the 5th amendment? Not yet, we have to get Bushie to put Judge Posner on the High Court, I guess. 🙂

Now, as to why this one town in CT has all the porn shops, look at what they named the place - MILFord, for crying out loud! Even Stifler would get that!

Kevin

[TheOtherGuy]

I think that what is missing here is the recognition of the freedom to individually and voluntarily come together to form communities. The communties might impose certain limitations on freedoms (which is different than giving up rights... you can always leave the community, or persuade others to change the rules by peaceful means.)

Thats somewhat of an ideal... but it should be recognized that many of these communities would have 'rules' that we don't agree with (like limitations of tobacco, alchohol, or pornography... or even requirements for religous observances.) We need to be tolerant of the viewpoints of others... not be so fixated on imposing our superior (and *cough* looser) morals with some kind of crusading zeal.

Leaving aside the details of how you might form, or leave, such a community... idealistically, a group of people should be free to live without having pornography blasted at them. They shouldn't be able to impose that viewpoint on the neighboring town, but they might try to convince them.

I read the arguments about zoning and first amendment here... and I think you guys are missing something important... that by being too dogmatic about these you are moving towards a less free society.

[Douglas Fletcher]

Jeez if you like that kind of place you ought to move to Phoenix. We got a ton of them here.

[joe]

My city was founded in the 1830s. There were 105,000 people living here when I moved in. Municipalities are not experiments set up by like minded people.

[Stephen Fetchet]

TheOtherGuy - I'd watch it. You're treading close to fascism, to suggest that the individuals comprising a small local community should have the right to impose their standards through democratic means... anything that infringes on the right to make, sell, and use porn is anathema to the First Amendment as we understand it around here.

Of course this regards the long pedigree of the Supreme Court's obscenity jurisprudence, which allows communities to restrict some materials based on content.

To everyone's credit here, however, this position does take Lawrence v. Texas to heart, and to its logical conclusion - that case held that morals and tradition can never form the basis for public action.

[TheOtherGuy]

Stephen...

actually, I don't think anything could be further from facism... letting local communities democratically decide is very decentralized and without a authority figure... not dictatorial. The way I see it... anything peaceful is free game.

If the private life of two individuals is something that should be outside the scope of government regulation... how about between three, ten, or a hundred? Can people consensually join into communities where they live their lives in the manner they choose? and if what they want to do is live in a neighborhood without porn shops?

What you sound like you advocate is 'everyone can turn their stereo's up as loud as they like'... well, thats obnoxious, it infringes on other people's rights to silence and privacy. I don't have any issue of you living in a town like that... but I don't want to live there. and I think its a violation of my rights that you want to impose your 'no volume' controls on me.

[Sean]

They can form communities as they like, but there rights to restrict the actions of others should end at the edge of their property line.

In reading the article, another thing that struck me was the church buying up the property one of the shops was built on. On the surface, I applaud this, by owning the property, they should then have a right to dictate to their clients how that property can be used. The only problem I see with this is that a non-profit church throwing down 250K for a commercial property pisses me off. If they can do that, it's high time they start paying taxes and reducing what I have to pay. Had a groupd of private citizens gotten together and done this (without the tax shelter of a church) I say more power to them.

[joe]

The relevant Supreme Court case is Renton vs. Playtime Theaters. Three important holdings: First, "time, place and manner" regulations are entitled to a high degree of deference from the court. Second, "primary effects" of adult businesses (the impact of the porno of the viewer) are not a legitimate reason to restrict them due to First Amendment protections, but "secondary effects" (hookers will hang out in the area) are. Third, even "time, place and manner" regulations must not completely ban adult businesses from the jurisdiction, because of First Amendment concerns (as opposed to zoning the entire city for single family homes only, because building rental property does not have the same Constitutional protection as free speech).

If you want to get all riled up, go to http://www.obscentiycrimes.org, where you will learn that tolerating the existance of porno stores is not an example of respecting the free speech principle, but simply a practical response to an unfortunate Supreme Court ruling.

[joe]

As far as the mosque comparison, the effect of the speech on the congregation is a primary effect, not a secondary effect, just as the desire to visit a prostitute is a primary effect of an adult business. A comparable secondary effect would be if Hamas recruiters hung out in the neighborhood. A great deal of factual evidence was submitted by the City of Renton to demonstrate that prostitution, crime, and declining property values were a predictable outcome of the creation of a red light district. SCOTUS made a factual holding on this issue. It is unlikely that convincing evidence could be produced linking the construction of a mosque to such secondary impacts, even if it could be shown that Wahabbist preachers made people want to join Hamas.

[Don]

"Municipalities are not experiments set up by like minded people."

Except when they are, like a lot of those religious communities of the last century (Utah being one of the bigger examples). My own grandpa tried to set up a Seventh Day Adventist community where I lived (funny thing for a cowboy to do), but failed for the most part. More recently, some hippies set up a local commune, but that seems to be fading as well.

[barney]

I live in Milford. It is not sin city by any stretch of the imagination. There are a few book/video stores in Milford. In some ways, the Penthouse Boutique that came to town is the best thing to "minimize the effect" of pornography industry, as over time it "WalMartizes" the industry and drives the others under. I don't think the church that bought the very run down property next to it's own religious store believes that though. They thought the owner of the store would leave promptly. He offered to be bought out rather than renew his lease, which the church objected to on moral grounds, unless he reduced his buyout price to something they could live with. They prayed (with high mayoral support) for the ouster of this guy, and Penthouse Boutique as well, which has been picked on mightily (using zoning and ex post facto legal maneuvers.) I guess they have some connections--because the store proprietor promptly dropped dead. Unless it was something other than divine providence... And now one of the alderman, who also prayed and fought for "decency", ended his own life (this is against the law in Milford). Hmmmmm.... Anyway I figure if they want to improve quality of life here, why are they building houses on top of houses? Regardless of zoning ordinance I might add. Oh and all the motorcycles that started getting tickets in nearby Orange when they enforced their noise ordinance (excess noise generated by unbaffled exhaust is against the law there) are now here, with utter impudence. I wish Penthouse Boutique were open at 2 AM, would give me somewhere to go when they wake me up leaving the bars, and get my mind off petty considerations.