Louisiana- Charges against two St. Martin Parish adult video-store owners should be thrown out because the state’s obscenity law violates the First Amendment, attorneys for one of the men have argued.

Emmette Jacob Jr. of Le Video Store and Edward Burleigh Jr. of The Video Place, were charged last year after undercover officers bought what prosecutors say was illicit pornography at the businesses.

In a three-hour court hearing, Jacob’s attorneys — a pair from a Chicago firm that specializes in defending the adult entertainment industry — argued that Louisiana’s obscenity law should be struck down because it is so broad and so vague that it improperly prohibits constitutionally protected expression.

“All speech is presumptively protected … and that includes hard-core sexual depictions,” said attorney J.D. Obenberger.

The video stores, both on the Breaux Bridge Highway between Lafayette and Breaux Bridge, remain open while the case is pending. The owners could face up to three years in prison if convicted.

Any decision made in Jacob’s case on the First Amendment challenge would also apply to Burleigh.

St. Martin Parish Assistant District Attorney Chester Cedars said the video store’s attorneys put forward few legal issues that haven’t already been settled by higher courts.

“They’re plodding the same ground,” Cedars said.

State Judge Charles Porter took the case under advisement and said he plans to issue a ruling by Aug. 28. Both sides said that regardless of the ruling, it will likely be appealed.

“No matter who wins, it may very well wind up in the United States Supreme Court,” Obenberger said.

The video store attorneys launched a multipronged attack on the state’s obscenity statute, first arguing that its wording makes the law applicable to all pornography that flows into Louisiana through the Internet, meaning it effectively imposes Louisiana’s standards on the remainder of the country.

A key issue is the so-called “community standards” test that the law sets out to determine when pornography crosses the line and becomes illegal obscenity.

Drawn from a U.S. Supreme Court decision, the test defines obscenity as anything that the “average person, applying contemporary community standards” would find appeals to a base sexual interest and has no political, scientific or artistic value.

Obenberger said that when applied to pornography on the Internet, the state’s law could “chill not only expression in Louisiana but across the country” because residents in other states would fear prosecution in Louisiana.

No major case directly addresses the issue, but other states have been grappling with it. Cedars even allowed that there may be a legal argument for doing away with the section of the state’s obscenity law that addresses “electronic communication.”

But the prosecutor argued that the Internet should not be a consideration in the case because the video-store owners are not accused of distributing pornography on the Web.

A second tact of the constitutional challenge focused on what Obenberger argued was the vagueness of the state’s law in spelling out which community defines obscenity.

“What is the community whose standards will apply in this courtroom?” the attorney asked rhetorically, questioning whether the “community” would be St. Martin Parish, south Louisiana or the whole state .

Obenberger said more than 20 states have specifically defined the geographical boundaries of the community whose standards define obscenity.

Cedars countered that the Louisiana Supreme Court has already weighed in on the issue, ruling that the jury hearing a case should determine the relevant community.

In a novel challenge to obscenity laws in general, Reed Lee, a First Amendment lawyer with Obenberger’s firm, argued that laws prohibiting the sale of obscenity infringe on the privacy rights of residents who have a legal right to view the materials in their own homes.

“Consenting adults should have access to whatever they want,” he said.

Lee said the legal justification of obscenity laws, one of the few exceptions to the First Amendment right of free expression, is to prevent children and unwilling adults from exposure.

He said the Louisiana law should be crafted only to limit distribution of obscenity, not ban all distribution.

Cedars said the privacy argument was the only one put forward Friday that has not been addressed by higher courts, though he doubted it would be successful.

“I think they are trying to extend the law beyond the bounds of reason,” he said.

Louisiana’s obscenity statute, which took its current form in the early 1970s, has been upheld in prior court challenges.

But the state Supreme Court in 2000 struck down a section of the law that prohibited the selling of sex toys, ruling that the state had no legitimate interest in banning what the law labeled “obscene devices.”