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Adult Entertainment Lawyer Prevails at 11th Circuit in Battle Over Obscenity LawFriday March 24, 2:59 am ETMeredith Hobbs, Fulton County Daily Report Adult entertainment lawyer Cary S. Wiggins has the boyish looks, good manners and perfectly pressed shirt of someone who was raised right.
Last month Wiggins, 34, succeeded in overturning Georgia's obscenity law, which includes a ban on so-called sex toys.
Wiggins acknowledges not everyone would congratulate themselves on such a feat. He said that when he announced the news to his father, a retired U.S. Air Force pilot, his initial response was, "You're not proud of that, are you?"
Wiggins told his father that he was, explaining he "convinced a panel of three federal judges to see the statute violates one of the public's most cherished rights," namely, free speech -- even though obscenity is not protected by the First Amendment.
The case is This That and the Other Gift v. Cobb County, Ga., No. 04-16419 (11th Cir. Feb. 15, 2006). Circuit judges Susan H. Black, Frank M. Hull and Jerome Farris heard the case.
Wiggins told me the only seriously contested part of the obscenity law, which forbids materials of "prurient interest," is the 1975 ban on sex toys.
The ban became a problem for Wiggins' client, This That and the Other, a Cobb County tobacco and adult novelty shop.
Fortunately for the state's purveyors of sex toys, the law has been spottily enforced. When Cobb licensed This That and the Other for business in 1998, Wiggins said, the county knew the store would be selling sex toys.
But in 2000, the county cracked down and told This That and the Other to stop selling the items.
Things did not look good for the store. Since 1977, Wiggins said, there have been 24 published Georgia Supreme Court opinions upholding Georgia's sex toy ban, which has also been upheld by various state and federal courts on the grounds that devices for sexual gratification are not protected expression under the First Amendment or the Georgia Constitution.
Platoons of lawyers have made unsuccessful arguments that the law violates privacy rights, is vague and overbroad, constitutes a prior restraint, and violates due process because it's not uniformly enforced.
Wiggins said that when This That and the Other contacted him in 2000, "I told them, 'Do you want the bad news or the horrible news?'"
Wiggins unsuccessfully sued Cobb County over the sex toy ban in the U.S. District Court for the Northern District of Georgia and then appealed to the 11th Circuit, which ruled in 2002 that the law's related ban on advertising obscene materials, which include sex toys, violated the First Amendment's protection of commercial speech.
Georgia's obscenity law does allow certain people, namely academics and people with permission from a doctor or psychiatrist, to purchase sexual devices, presumably for nonprurient uses -- and for that reason, the appellate court said, the law's advertising ban was too broad.
The 11th Circuit instructed the district court to see if the language banning advertising could be severed from the law. The lower court decided it couldn't -- but ruled to uphold the obscenity law on the grounds that its language could be interpreted to allow advertising to legal sex toy users.
LOWER COURT SCOLDED
Wiggins again appealed to the 11th Circuit and on Feb. 15, the appellate court overturned the district court's decision in a unanimous opinion that took the lower court to task for revisiting the First Amendment question.
The appellate court also scolded the lower court for its determination that the obscenity law could be saved by means of a bit of editing, i.e., a limiting construction. "This case illustrates that revisiting of statutes should be left to the Georgia Legislature," the 11th Circuit wrote, just in case the lower court did not get the message.
And with that, the entire obscenity law fell, taking the sex toy ban down with it.
Wiggins called his free speech argument against the advertising ban a "stealthy" maneuver. "Why would Cobb think the obscenity statute, which is outside of the First Amendment, would be vulnerable to a First Amendment argument?" he said with evident satisfaction.
The back-door argument was stealthy enough to create confusion in the legal community and the press over whether the 11th Circuit's ruling toppled the entire obscenity law or just the prohibition on advertising sexual devices.
But the state attorney general's office quickly realized that Georgia had just lost its obscenity law. On Feb. 21, the attorney general informed the governor, the lieutenant governor and leaders of the House and Senate of the law's demise and let them know that they might want to draft a new statute.
Sen. John J. Wiles, R-Marietta, obliged, but his bill, Senate Bill 261, appears to be stuck in the Senate Judiciary Committee.
AT THE LEADING EDGE
First Amendment arguments are an adult entertainment lawyer's best friend, as Wiggins' recent win demonstrates.
But Wiggins also might argue that his clients on the prurient side of the law are the ones who safeguard First Amendment rights for the rest of us.
Most groundbreaking decisions by the U.S. Supreme Court involved "something unsavory that's on the fringe," he said earnestly. "You've got to argue the ugly cases. The Atlanta-Journal Constitution does not need the First Amendment. It's adult businesses that need it."
A lot of Wiggins' work at Cook, Youngelson & Wiggins is over routine business and liquor licensing issues for restaurants and bars -- as well as strip clubs, adult bookstores, bail bondsmen and vehicle booters. While licensing issues often are the hook that brings in clients, he said, the backbone of his practice is First Amendment litigation.
"The litigation consumes me. It's what I spend the lion's share of my time doing," Wiggins said.
He'll soon be heading back to the 11th Circuit on behalf of Club Exotica, a Macon, Ga., strip club fighting to keep its liquor license. "All they want to do is dance nude and sell liquor," Wiggins said. He's writing the brief right now.
He'll likely also be suing the new city of Sandy Springs, Ga., over a similar attempt to shut down two other strip club clients, Flashers and Mardi Gras.
He filed suit just last week against the city of Atlanta for trying to shut down the Phoenix, a faded gay bar on a rapidly gentrifying strip of Ponce de Leon near City Hall East.
The city wants to revoke the Phoenix's liquor license over an alleged sex act on its premises last fall. "They've been in business for 18 years with no violations and now, after one alleged incident, the city is pulling their license. There are stabbings and date rapes reported at Underground -- but the city isn't trying to close down the clubs there," Wiggins said indignantly.
Wiggins said his fiancé, whom he described as a nice Catholic girl from South Bend, Ind., supports his work on behalf of the state's bars, bail bondsmen, strippers and sex toy vendors. "She knows I've got a strong interest in constitutional issues and enjoy litigating them."
The only drawback, he said, is that it can take a while for him to get paid, since a large chunk of his fees come from the state and local governments that he often sues. Those cases can take years to wend through the lower and appellate courts.
In This That and the Other's case, for example, it still will be months before his attorney fees, if any, are awarded -- for a suit he filed in 2000.
"She probably wishes I enjoyed something more profitable," he added ruefully.
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