Twin Falls, Idaho - from www.magicvalley.com - Market your business as “adult” in Twin Falls and beware — you may draw the suspicion of local law enforcement that your wares cross into the obscene.
Obscenity is a murky area of law, perhaps best summed up by U.S. Supreme Court Justice Potter Stewart in 1964: “I know it when I see it.”
In Idaho Code, obscene materials are defined, in part, as depicting a “shameful or morbid interest in nudity, sex, or excretion that goes substantially beyond customary limit.” There’s also the “community standards” clause for defining obscenity, as laid out in a 1973 U.S. Supreme Court case.
There are no legal definitions for a “shameful interest,” Twin Falls City Attorney Fritz Wonderlich said. Such gray areas within Idaho’s obscenity laws have left the owners of three Twin Falls businesses questioning how to respond after city officials asked them to identify and remove potentially obscene items sold at their shops.
Wonderlich, Twin Falls Police officials and Mayor Don Hall couldn’t name or specify the potentially obscene wares sold at the three stores — Karnation, Enchantress and the Smokin’ Head Smoke Shop — targeted for obscenity investigations recently, only that advertisements for the stores drew complaints from citizens. Letters sent to all three businesses warned that undercover police will check the three stores for obscene materials.
The Smokin’ Head featured a storefront sign reading “ADULT XXX” when it first opened, but owner Allen Nagel removed the XXX due to complaints from the city, he said. Another was also advertising XXX movies on television, Wonderlich said, though he would not specify which store it was.
“Two of the three ‘adult’ businesses were advertising ‘XXX’ movies,” he wrote in an e-mail. “One was advertising on the store front. Another was advertising on television. Letters were sent to all three businesses in the City that advertise ‘adult’ materials.”
Wonderlich said the letter was intended to make the stores aware of state obscenity statute and to encourage the stores to see if their wares are prohibited.
“The advertised ‘XXX’ movies may or may (not) be obscene, as defined by statute,” he wrote.
University of Idaho law professor Richard Seamon, who teaches a constitutional law course, said proving something obscene is a difficult task for a prosecutor, thanks to the concept of “shameful interest” and because the materials need to be “substantially beyond customary limits.”
But Twin Falls’ strong religious demographic and overall conservative nature may be of benefit to any eventual prosecutions, Seamon said.
“In a more-conservative area, you as a shop owner are really more susceptible than in a so-called liberal area,” he said.
It would ultimately be up to a jury, composed of the members of the community in question, to decide if the materials go substantially beyond customary standards, he said.
Though Twin Falls is a conservative city, it’s also one that keeps the three adult stores in question and several others in business.
“Are we fairly conservative here? Yes, if that’s the question, sure, especially when you look throughout the nation,” said Hall when asked about his city’s community standards. “Our state as a whole tends to be more conservative than most pockets of the United States.
“Do we have folks who aren’t as conservative in this town? Sure. And are we tolerant of that? I think that we are.”
Hall said he’d imagine any depiction of illicit sexual acts would be beyond community standards, though he deferred to Stewart’s famous phrase to define such acts: “When I see it, I know it.”
“You can blur those lines all you want, but my thought is come on. You know what obscene is,” Hall said, later adding that this is a healthy debate for the city.
Nagel said he threw out dozens of videos he thought might cross the line. He had opened them to remove the discs and prevent theft, he said, which also keeps the distributor from buying them back. He said he had thought that if he removed the XXX portion of the sign from his store window, it would have ended the issue weeks ago, before the letter was sent with its threat of potential arrest for those who don’t comply with obscenity laws.
“If they don’t leave me alone, they are going to force me to get a First Amendment attorney.” Nagel said.
Nagel has said he feels targeted because of the ire his three-story, purple-and-neon-green building on Blue Lakes Boulevard has drawn.
Hall said the Smokin’ Head did draw the complaints, and he assumed the other businesses were targeted because, once the debate started, the police heard of other buildings with similar advertisements. Hall, a former Twin Falls police officer and the head of the College of Southern Idaho Law Enforcement Department, said police are obligated to act when they believe a law may be violated.
For the targeting of Nagel’s shop, it’s because he asked for it, Hall said.
“I believe the community has spoken. Many of them don’t like the color, many of them don’t like what the building represents, and I guess in that respect the community has targeted him,” Hall said. “But he asked for the target because he painted it that color and he put the triple-X out there.”
Hall said he wasn’t aware Karnation or Enchantress sold adult videos, just lingerie as advertised on their commercials.
Managers at Karnation didn’t return messages seeking comment for this story. The owner of Enchantress said she didn’t want to draw extra attention to her store, though she said her late-night advertisements show her business card, which reads “Adult Movies” on it.
