Are Adult-bookstore Bill Backers Ready To Challenge Constitution?

THE OBSERVER

December 08, 1991|By Mark Guidera

It seems certain that by mid-January a revised bill to regulate adult bookstores in Harford will surface from a committee that has been struggling with it for several weeks.

Chief backers of the bill arenow saying the bill's intent is to protect the public from diseases that could be spread from alleged sexually activity at the shops. Butthe real intent is to end sexual activity bill supporters claim is happening at the shops.

However, in the committee's zeal to fashion a bill that would accomplish that end, there are several possible ramifications of the bill which need more review before it's proposed.

First, can a law constitutionally single out shops that offer on-site viewing of sexually oriented films (adult bookstores) as opposed to those that offer customers similar films to take home and watch on their VCRs (video stores)?

Many local neighborhood video shops offer films for rent that are just as sexually graphic as those offered in the peep show booths at the adult bookstores. And many neighborhood convenience stores offer for sale magazines that are as sexually explicit as some offered in the adult bookstores.

Councilman Philip J. Barker, the authorof the original bill, says he has no intent in requiring local videostores or convenience stores to come under the regulations of the bill. But the way the bill is worded those shops could indeed come under the arm of the bill.

Are you listening, book store, video and magazine store owners?

Joel Simon, a Baltimore lawyer with Tydings and Rosenberg, works for the American Civil Liberties Union. He says that the only distinction between a local video shop, which offers sexfilms to rent for home viewing, and an adult bookstore, which offerson-site viewing of sex films, is the "form of communication" offered-- not the content.

And the First Amendment, says Simon, says that there can't be any difference in constitutional protection based onthe form of the communication.

Meaning that if the bill were passed with its current language, those charged with enforcing the regulations in the bill would have to enforce it just as hard on all businesses that offered the sale, rental or viewing of sexually explicit videos, magazines and books.

Among those requirements would be that the shop would have to get a license to operate and that license could be denied if the shop was within 1,000 feet of a school, church, day-care center or residential area.

On a spot tour of the county's video store locations last week, I didn't find any that were that close to a church or school, but quite a few seemed to be that close to homes.

Almost all that I visited carried a selection of sex films.

I didn't tour convenience stores in the county or book and magazine shops, but these are often located near residential areas and manycarry a selection of skin magazines, some of which depict people in a "state of arousal" as the bill states.

If the bill were enacted as worded now, a group opposed to pornography could ask police and zoning officials to require a local magazine or video shop to come under the law's requirements.

Don't think that wouldn't happen.

TheHarford chapter of the American Family Association has been known topicket local convenience stores for carrying skin magazines. They'd be the most likely group to be calling for police and zoning officials to enforce the letter of the adult bookstore law since they've beenamong those that approached Barker to draft a bill.

Barker arguedthat this worry is unfounded and pointed to the bill's wording that it only covers those businesses whose "principal business" is the sale, rental or viewing of films and magazines, which show people in a state of sexual arousal.

This raises the second troubling issue that needs exploring.

Civil liberties lawyers like Simon think that term overly broad.

Would it be based on gross sales receipts or on the stock of a shop? Barker argues it would be based on what was the most common items offered in the shop -- if largely the items had a sexual orientation then the store would come under the bill's requirements.

The term is not well-defined in the draft bill and doesn't seem destined for better definition before the new bill surfaces next month.

Over time, of course, the definition might change dependingon was enforcing it and who was in elected office.

A sheriff or acounty executive who had a moral opposition to pornography could order a crackdown on video stores that carried sex films.

When the revised bill surfaces as a legislative proposal next month, Barker willplace an emphasis on the bill as a measure aimed at combating the spread of sexually transmitted diseases.

"We see the bill as relating to protecting the health of citizens. We want to prevent health problems," said Barker last week.

What Barker is gently dancing around is the alleged sexual activity occurring in the peep show booths atsome adult book shops.

Protecting people from contracting a disease through sexual activity in an adult bookstores is noble. But let'sface it: Local health officials will be hard-pressed to provide statistical information that shows sexual activity in Harford's adult bookstores responsible for so much disease as to make it a compelling public health issue.

It's a safe bet that most residents won't raisea storm over enacting requirements to make shop owners responsible for guarding against sexual activity in the shops.

But I'd bet people would kick up some dust if they knew the bill held the potential over time for an overzealous politician, zoning administrator or police official to breathe the fire of their own morality onto the shelvesof their local video shops and convenience stores.

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