Legalese Column: Risk of Seizures

This article originally ran in the May 2016 issue of AVN magazine. Click here to see a copy of the digital edition. Many years ago, the Supreme Court of the United States firmly established that mass seizures of sexually oriented magazines (demonstrating how long ago this was) were a no-no. In two cases—Marcus v. Search Warrants, 367 U.S. 717 (1961) and A Quantity of Books v. Kansas, 378 U.S. 205 (1965)—the police seized thousands of magazines before the vendor was given a chance to go to court and weigh in on the issue of obscenity. As a result, for example, when the federal government initiated all of those federal obscenity cases in the late ’80s and early ’90s, the search warrants all ordered the seizure of only three copies of each of the target movies. Although not all local governments are so familiar with Marcus and Quantity, mass seizures from adult bookstores haven’t been in the news in quite a while. However, much has changed since then, particularly the character of retail inventory at adult retail outlets. Media items have become a sideline. The weapon du jour against adult businesses back in the ’60s and ’70s was seriatim obscenity busts. Police mentality was a residue from the prohibition era, when the cops would bust into an illegal still with axes and execute what you might consider summary forfeiture of the booze. That worked then because of the Volstead Act outlawed the possession of alcohol everywhere in the United States. It is now the same procedure with respect to illegal drugs. If something is illegal per se, like cocaine, it can be summarily seized—all of it. Magazines are different, as are motion pictures, books and other expressive materials. They are not illegal unless obscene—and obscenity depends upon current, local community standards. They also are presumptively protected by the First Amendment. That is what brought about Marcus and Quantity. Much has evolved. Back then, much of the impetus supporting busts of adult retail outlets arose from the eyesore factor. People were understandably miffed about their children walking home from school past a yellow and black building adorned by a “Mr. Peepers’ Glory Hole” sign. Thus the late ’70s and the ’80s brought zoning ordinances that were designed to keep such places out of sight along with the exploding adult videotape industry, which softened attitudes—at least some—about sexually explicit fare. The standard adult bookstore remained what it was—retail in the front and video booths in the back—for many years, until the internet. But when the first decade of this millennium brought internet insta-porn, there evolved a sea change in adult retail. The evolution gradually rendered “couples stores” or “love boutiques” a better business model. Over time, the inventory of media materials became a sideline of adult retail. The focus turned to sexy lingerie, shoes, sex paraphernalia and other, non-communicative items. And while these businesses have gained acceptance, there remains a very vocal minority professing that sex should be confined to the marital bedroom for the limited purpose of procreation (although the behavior of some of the politicians trumpeting those views certainly calls their sincerity into question). The love boutiques tend to stock whatever products will drive sales, materially none of which are protected by the First Amendment. That has led to some of the mass seizures of which you may have heard. One of the vulnerable lines of products is sex toys, although not all of them and not everywhere. Back in the ’70s, as part of Georgia’s efforts to eradicate adult bookstores, it enacted a law identifying as contraband any “obscene device,” which meant “any device designed or marketed as useful primarily for the stimulation of human genital organs.” Subsequently, a handful of other states followed suit; not surprisingly, most of them were in the South: Texas, Mississippi, Louisiana, Kansas Colorado and Alabama. Challenges to these laws have met with mixed results: Unconstitutional in Colorado and Louisiana; somewhat unconstitutional in Kansas; and the absurd result in Texas where the statute was held unconstitutional in the federal court of appeals, which holding the Texas state courts have refused to follow because, you know, Texas. Local enforcement has been spotty for a variety of reasons. In some locales, the constabulary has taken the position that only genital-looking vibrators are illegal. Apparently they figure that, otherwise, how many people use those vibrators that they sell at drug stores to relax their neck muscles? Another approach that has met with mixed results is a disclaimer on the box that the item is sold only as a novelty. Some locales just have more important things to do than worry about vibrators, an attitude that sometimes changes at election times. After all, this is a really dumb law! Another vulnerable category of items is so-called “smoking accessories.” A pipe—you know, the kind Hugh Hefner smokes—can be used to smoke pretty much anything to which you can set fire. If you intend to smoke tobacco in it, then it is legal; if you intend to smoke marijuana in it and you do not live in one of those places that has legalized pot, then it becomes “drug paraphernalia,” which is illegal everywhere, except in that niche where marijuana is legal; and in those places, limited to marijuana. So, here is how that works: Undercover cop comes in and gets into a conversation with the sales clerk about some of the “smoking accessories.” The clerk makes some ill-advised comment like, “those are really for crack; if you want one for pot, the one over here is the best.” So the gendarmes comes in and seize all of the “smoking accessories.” The same holds true for some other things. In one spate of cases that the author defended, the store sold nitrous oxide canisters designed to be used in whipped cream dispensers. Facially, they are totally legal; nitrous oxide apparently is used for whipping cream because it is inert to dairy products. However, nitrous oxide is also “laughing gas.” Now, since adult bookstores do not sell much in the way cooking utensils, it is easy for the cop to say, “What are these?” “Whip-its.” “What’s a Whip-it?” “You know, you put the gas in a balloon and inhale; it’s a great high!” Well, it’s off to jail for him; along with a seizure of the Whip-its. Another one is “poppers,” a class of chemicals called alkyl nitrites, which aren’t what they once were. Back in the 1970s, they were amyl nitrite, oddly, a component in jet fuel. When that was outlawed, the substitute was butyl nitrite, even more serendipitously, a component of rocket fuel. In the late 1980s, butyl nitrite was declared by Congress to be a “banned hazardous substance” under the Consumer Product Safety Act if purchased in small quantities. The latest incarnation is sold as “head cleaner,” containing cyclohexyl nitrite and supposedly used for cleaning the playback heads of videotape machines. (Anybody have one?) Some of the above products just aren’t worth the hassle. Do you really want to carry a product that hardly ever sells but is a potential legal nightmare? There is one level of hassle, which would be a misdemeanor bust of the on-duty clerk (who dug his own grave, as noted above). Note, however, the War on Drugs, the proponents of which largely admit has been lost, has created some drastic forfeiture laws. The paradigm was the Reagan Administration’s “Zero Tolerance” policy, by virtue of which the government could seize an ocean liner if it was transporting an ounce of marijuana. Adult retail will continue to evolve. As the computer and the television set continue to become one, the demand for adult DVDs will get to the point where the adult retailers won’t bother even carrying them. Look for the love boutiques to continue to flourish. Love boutiques will continue to flourish; and, if tactfully operated, will draw limited fuss from City Hall. Ideally, the window displays will be materially indistinguishable from Victoria’s Secret, although some of the inventory will be considerably racier. That is just common sense. The days of the yellow and black signs are over. Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at ClydeDeWitt@earthlink.net. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.