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Editorial: City Council needs strong action against smut

Arizona Daily Wildcat,
September 1, 1999

At this week's City Council meeting, the primary order of business was an ordinance that would take smut publications off the streets. Specifically, the ordinance would attempt to remove local smut tabloids such as Arizona Swingers and Pleasure Guide from roadside vending machines. However, loopholes built into the law would render it absolutely ineffective.

In a misguided attempt to ward off First Amendment objections, the ordinance (currently being discussed), would only limit publications containing sexual content exclusively. This would allow an easy way out for the publications being targeted. All they would have to do is add a story or two on current events or entertainment of the type frequented by their readers and they are back on the streets.

It is absurd for the council to include such a broad and obvious loophole into the legislation. There is no reason for it and it could easily defeat the purpose of the ordinance: keeping these publications out of places where they can be accessed by young children.

A more comprehensive law is necessary. It must simply state that publications with strong sexual content cannot be sold on the streets.

Today, if you want to buy sexually explicit magazines, you must do so in a store. This means that if you want to buy Hustler, or even Playboy, you must talk to the clerk and maybe show some ID. A foolproof system? Of course not. But it is better than no system at all.

Such an ordinance would not trample the First Amendment. If these publications are, as the City Council believes, designed primarily to "appeal to the prurient interest," they are not accorded First Amendment protection. In Memoirs v. Massachusetts, 1966, the Supreme Court held that obscene materials are not entitled to First or 14th Amendment protection.

Additionally, the court lowered the bar for what is considered obscene. The ruling stated that "a patently offensive book which appeals to the prurient interest need not be unqualifiedly worthless before it can be deemed obscene." Translation: if a publication does not meet community standards, even if it has some non-sexual content, it can be deemed obscene. Once it is deemed obscene, it no longer enjoys the protection under the First and Fourteenth Amendments that non-obscene publications do.

What does this mean for the case at hand? First off, the City Council's exemption of publications that contain articles outside of the dominant sexual content is misguided and unnecessary. This exception is obviously intended to protect the council from criticism over restricting publications that may have more than pure sexual content. The Supreme Court, however, has made it abundantly clear that such exemptions are unnecessary.

If we want to keep these publications out of the hands of children, we should apply the strongest restrictions allowed under law. Halfway measures such as the one proposed cannot resolve any of the concerns presented.

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