Editor's note: The Sandy Springs City Council is expected to vote Tuesday to adopt its own obscenity law in reaction to the 11th U.S. Circuit Court of Appeals ruling in February that the state's obscenity law was unconstitutional.
Attorney Alan Begner [pictured] writes in the AJC: I am troubled that Sandy Springs intends to enact an ordinance which makes it criminal to distribute obscene material or sex toys. To my knowledge, no city has ever enacted an obscenity law in Georgia. This is because distributing obscene material has been, since 1968 or so, a misdemeanor state crime. In February, the 11th Circuit Court of Appeals struck down Georgia's obscenity law as unconstitutional, and the Legislature did not get around to enacting another one.
I am troubled by the reasons Sandy Springs intends to pass the ordinance. It can only be directed toward stores that sell sexually explicit material or sex toys to people to take home and use in the privacy of their homes. It has nothing to do with anyone except store clerks. It cannot be applied to live entertainment or other already prohibited sex for money offenses.
I fear that Sandy Springs will arrest adult store clerks in an attempt to create crime evidence to be used against the stores that challenged Sandy Springs' recent adult store ordinance. I am challenging that ordinance in U.S. District Court at this very moment.
There is one other potentially sinister reason for passing this ordinance. In the past, when a clerk has been charged with distributing obscene material, under state law, she or he has been entitled to a jury trial. Juries do not convict clerks of selling obscene material in metro Atlanta. Sandy Springs' proposed ordinance has the effect of denying an arrested clerk the right to a jury trial. Instead, a Sandy Springs Municipal Court judge will decide if the material is obscene. And the judge can jail an offender for up to six months per count.
Like Municipal Court judges in other cities, those in Sandy Springs serve at the pleasure of the City Council. It is always hard for these judges to rule against their City Council in cases that the council wants to prosecute without reasonably fearing the loss of their job. It is unfair to ask these municipal judges to be fair and impartial under the circumstances.
I read that Wendell Willard, Sandy Springs' attorney, has said, "The city does not intend to go on a witch hunt." Wendell is an honorable man. But there is no reason to pass the law except for the conducting of a witch hunt. I urge the council to reject the proposed ordinance.
