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Adult Entertainment Lawyer Prevails at 11th Circuit in Battle Over Obscenity Law
Friday March 24, 2:59 am ET

Meredith 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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Your Right to Buy Sex Toys

From the memphis flyer online:

Your Right to Buy Sex Toys

You have none. At least you don’t if you live in Mississippi. On March 19th, the Mississippi state supreme court upheld a law banning the sale, advertising, or exhibiting of any three-dimensional device used primarily for the stimulation of human genitalia.

The decision stemmed from a lawsuit filed by the Memphis-owned Christal’s chain of adult stores on behalf of its Southaven store. The company claimed that store was forced to close in 2000 because of the state’s ban on the sale of certain “intimate devices.”

The court's decision upheld a 2003 ruling that contended that the state had an interest in “protecting public physical and mental health and supporting public morality.” Whatever. What it means for you Mississippians is simple: When dildos are outlawed, only outlaws will have dildos. Read more about it here.

Or you could go here, and learn to make your own sex toys. But that would be wrong, not to mention icky.

BOING BOING'S GUIDE TO DEFEATING CENSORWARE

(see story here)

"The Internet interprets censorship as damage
and routes around it." -- John Gilmore

If your employer or corrupt, undemocratic, dictator-based government uses a filtering service such as Secure Computing's SmartFilter to block access to BoingBoing.net -- or anything else online -- you can try the following workarounds:

• Distributed BoingBoing mirrors everything on BoingBoing.net at random IP addresses to foil filters.

• Read "Technical Ways to Get Around Censorship," a helpful primer from Reporters Without Borders: Link.

• Google can act as a lightweight, proxy-like tool for accessing forbidden sites -- but don't rely on this method for anonymity. Link.
• The popular RSS reader Bloglines can offer lightweight help in some cases, too. Boing Boing reader Tom Jeziorny says, "I work for a BIG financial services company that apparently uses (not-so-) SmartFilter because BoingBoing has recently become a forbidden site. I use Bloglines as my RSS reader so that I can access the blogs I read from work and home. It turns out that Bloglines is acting as sort of a proxy, since it connects to your RSS feed and not my computer, I'm still able to read BoingBoing at work. Since you publish the full text of your entries in your feeds I'm not missing much, though any photos linked directly from your site are edited out."

• A group called Peacefire created proxy software called Circumventor to bypass censorware. Install this software on your home computer and allow others to use your proxy to access the web, or use your proxy from work or school to access any web site. (Thanks, Sean!)

• Bennett Haselton of Peacefire, who developed Circumventor, says:

  "For 90% of users in the USA affected by SmartFilter, there is no reason to use anything but Circumventor. The reasons are:

  1) It's simple to set up. Just run three simple point-and-click installers. We even have a wizard that comes up automatically to help you set up port forwarding on your router if you've never done it before.
  2) You are not required to install anything on the "censored" computer, you just bring a URL in with you to work.
  3) It works even if the censored network blocks direct connections to IP addresses outside the network (which would break some of the other solutions recommended in this guide).

  "If you're in Iran, Saudi Arabia, or some other country censored by SmartFilter, then your best choices are (a) TOR, or (b) use a Circumventor if you can get someone in a "free country" to set one up for you. (The reason Circumventor works for 90% of workplace-filtered users in the U.S. is that they can almost always set it up on their home computer and take the URL in with them. But not everybody in a censored *country* has someone outside who can help them.)

  "Circumventor is the *only* method (as far as I know) that will work reliably on computers where people are blocked from installing their own software (or even changing proxy settings) -- because after you install it on your home computer, all it gives you is a URL, and you can take that URL in with you to work and use it whenever you want. Many people in workplaces and libraries are blocked from installing software on their computers. Or even if they could, it would be a definite 'smoking gun' if anyone noticed that the software had been installed; whereas our software leaves fewer traces. (There is a 'smoking gun' in the form of a URL in the URL history, but that's much less likely to be noticed than a TOR icon on your desktop!)"

• Rich says, "This cgi-bin script is the guts inside Peacefire's Circumventor - a Perl CGI script that proxys for you. While Circumventor is a full script to get it working under Win2k/XP, the cgiproxy script alone lets you get it going on Linux and (presumeably) Mac OSX. And the best part - the setup is dirt simple - if you're already running a web server, pretty much just drop it in your cgi-bin directory.
• Access the TOR network. The more people who run Tor servers, the faster and more anonymous the network becomes.

• Using an SSH tunnel, VPN, or anonymous overlay to an unfiltered network is widely considered to be the best way to protect yourself while accessing "prohibited" content. (Thanks, chris)

• Chris says, "There is a new option in OpenSSH that allows for ethernet level tunneling using the kernel's TUN interface. This is probably the most powerful solution if you have access to a friendly system to use as the end point of the tunnel. Manual for ssh, see -w option: Link. For ssh_config, see Tunnel option: Link. And one more way to use SSH as a tunnel is to with SOCKS: Link. osx example script: Link.
• Breaking out of a Proxy Jail. Link (Thanks, Mutz!)

• Try Daveproxy, and other services listed on the proxy list at samair.ru/proxy together with AntiFirewall (a small app that tests proxies). (Thanks, Joao Barata!)

• Try Java Anonymous Proxy. JAP uses the TOR network, and installation is pretty easy for non-nerds. (Thanks, Jonas)

• The Bitty browser, while not initially designed as an anonymizing tool, has helped some of our readers work around corporate internet filters. (Thanks, Scott Matthews!)

• Some of our readers have found the Coral Content Distribution Network (CCDN) helpful for evading internet blocks. Just add ".nyud.net:8090" at the end of boingboing.net -- for example, instead of typing http://www.boingboing.net to your browser's address line, instead type http://www.boingboing.net.nyud.net:8090. If port 8090 is blocked for some reason, the Coral Cache also functions on port 8080. Or, try adding .cob-web.org:8888 to the URL if the Coral Cache is blocked, for an alternate cache network. (Thanks, BeHE, Tian and Michael!)

• Check out the regularly updated list of public proxy servers at publicproxyservers.com.

• For BoingBoing readers in the UAE or Qatar, or other countries where BoingBoing is blocked, one anonymous reader tells us: "There is an internet via satellite called OPENSKY sold through www.broadsat.com which goes around these problems. Using VPN with normal dialup, the signal gets sent back from Europe, so, uncensored. Works really well and is cheap!"

• Andy Armstrong says, "I've also set up a proxy for boingboing at boingboing.hexten.net."

• Ben says, "You can also set your home computer up for remote access. Windows XP has the components built in. If you run XP at home it will take you about 30 min to set up. You can find instructions here. Once you set up remote access you can use Zone Edit freeware to set up a static IP, even if you are on a cable modem. If you really want to go all out register a website for $5 and have that point to the Zone Edit IP address. I can hit my home computer from anywhere with web access, and have its full functionality, including censor-free web browsing."

• Marcus Aurelius says, "This is how I dodged Etisalat's (The UAE ISP and telco) proxy-server blacklist. It is only really useful for text-rich sites since it involves using Lynx a text browser."

• Abdul Aziz says, "It's a pain to know that countries and companies alike are blocking and censoring sites like Boing Boing. I face this at my office everyday. I've mentioned two ways on my site by which you can bypass these proxies and filters safely and securely without breaking any rules or arousing the network admin's suspicions." Link

• Former Censorware Project chief programmer Seth Finkelstein posts anti-censorware resources here .

• A tutorial on how to bypass Internet Censorship using proxies, shells, JAP, and the like: Link (Thanks, Seth Finkelstein)

• Michael sez:

  The Anonymizer company has a contract with the Voice of America to provide anonymous internet access for users in a number of foreign countries, including Iran and China. Here's how an Anonymizer sysadmin describes the Iranian portion of the service: "It's based off of PrivateSurfing [...]. Added features for the Iran proxy is full time SSL, URL encryption, Farsi language support, and we switch the proxy website about once a month (every time the Iranian government blocks us). We perform checks on the service from within Iran to see if our site is actually blocked (yes, it works), and we maintain a database of all known e-mail addresses that we can detect as being located in Iran. Every time we switch the proxy site we send an e-mail informing them of the new free proxy location so the citizens of Iran can find it. The sites are also broadcast via radio and TV into Iran by the VOA. To be honest, we're usually about a day behind the blocks, due mostly to time zone differences."

Or...

• If you're accessing BoingBoing from work, you may be able to ask your system administrator to whitelist BoingBoing.net. That's shorthand for selectively removing the domain from a list of forbidden sites provided by the filtering software vendor. If your employer uses SmartFilter, for example, a sysadmin can selectively allow the BoingBoing.net domain, while keeping the rest of the entries for the "blocked" category in which BoingBoing is listed. Bribing your network administrator with cartons of Skittles and Red Bull may expedite this option. (Thanks, mcsey!)

If you know of any good ways to defeat censorware, please send us your suggestion.

Patriot Act Game Pokes Fun at Government

HAMILTON, N.J. — In this send-up of "Monopoly," players don't pass "Go" and they don't go directly to jail — they go to Guantanamo Bay.

Instead of losing cash for landing on certain squares, they lose civil liberties. And the "Mr. Monopoly" character at the center of the board is replaced by a scowling former Attorney General John Ashcroft.

"Patriot Act: The Home Version" pokes fun at "the historic abuse of governmental powers" by the recently renewed anti-terrorism law.

But while it may be fun, creator Michael Kabbash, a graphic artist and Arab civil rights advocate, is serious about how he feels the law has curtailed Americans' freedom.

The object of the game is not to amass the most money or real estate, but to be the last player to retain civil liberties.

New Jersey graphic artist and Arab civil rights advocate, Michael Kabbash, speaks about his newly designed board game the Patriot Act, Tuesday, March, 14, 2006, at his office in Hamilton, N.J. A parody of the Monopoly game, The Patriot Act pokes fun at the historic abuse of governmental powers by the recently-renewed anti-terrorism law. (AP Photo/Jose F. Moreno)

"I've had people complain to me that when they play, nobody wins. They say `We're all in Guantanamo and nobody has any civil liberties left,'" he said. "I'm like `Yeah, that's the point.'"

The real Patriot Act, passed after the Sept. 11, 2001, terror attacks and renewed earlier this month, gave law enforcement new investigative and prosecutorial powers. Critics say it unacceptably impinges on civil liberties, but the government defends the law as a vital tool that has helped prevent another terror attack.

Kabbash decided to keep Ashcroft as the visual focus of the game, even though he stepped down in January 2005, because "he really is the icon that people associate with the Patriot Act."

In a nod to President Bush's prewar comments, the "Go" space in is renamed "Bring It On!" Players roll the dice to determine how many civil liberties they start out with, accumulating them from a variety of categories: U.S. citizens get 5; non-citizens 1. Whites and Asians get 5; Arabs 1. Ultra right-wingers get 6; Democrats 3 or 4.

Instead of landing on, say Oriental Avenue, players land on a color-coded spaces corresponding to the national terror alert. A player who lands on a red space loses one civil liberty, as does anyone else within five spaces. A player who lands on an orange space gets to designate another player to lose one civil liberty.

"Chance" cards are now "Homeland Security Cards," with orders such as, "FBI wants you for questioning; Lose one turn;" and "You provide the local authorities with speculative information on your next door neighbor; Collect one civil liberty from each player."

Kabbash, of Green Brook, created a few full board sets but is also distributing the game free over the Internet, with the game board and playing cards all printable. More than 2,000 copies have been downloaded since it debuted in 2004.

"I wanted it to be not only a parody but a teaching tool," said Kabbash, 38, who teaches graphics at the College of New Jersey. "This is my way of putting my political ideas forward, hoping people will wake up. There's a lot of apathy, and we have to realize that we're in a democracy, that we're all allowed to say something."

Ashcroft had no comment on the game when asked about it Saturday during a crime conference in Miami Gardens, Fla., but he laughed when told "jail" had been replaced with Guantanamo Bay. U.S. Justice Department public affairs did not immediately return a call Saturday seeking comment.

Kabbash says his next project will probably have something to do with the National Security Agency's domestic eavesdropping program. He is reasonably certain "there's a file on me somewhere."

Asked if the FBI keeps a file on Kabbash, a bureau spokesman refused to comment.

___

Associated Press Writer Jessica Gresko in Miami Gardens, Fla., contributed to this report.

___

On the Net:

Game: http://www.graphix4change.com/

Patriot Act: http://www.lifeandliberty.gov/

Post found via newsvine

Tennessee Senator Dismisses Sex Toy Showdown

"Senator Dismisses Sex Toy Showdown"

A controversy over sexual devices is over before it even got started. State Senator Charlotte Burks had proposed a bill that would make it a crime to sell or even own sexual devices and toys.

Late Wednesday afternoon, the Senators' office said she has decided to pull the bill from consideration. The House version is expected to be killed Thursday.

Nashville adult business owners said they think lawmakers should have better things to do.

Lawmakers do not plan on reworking the bill and introducing it again this session but it could come up again in the future.

Original story found via yahoo news rss feed. Originally aired and posted by WKRN - Channel 2 news Nashville.


As Previously Reported in the Nashville Scene - There had been a new State Law to Ban Sex Toys, In the State of Tennessee:

Down With Dildos!

Two state legislators say no to sex toys

by John Spragens

Thank God the state legislature is back in session. When they’re gone, political columnists are forced to take up serious topics like the deputy governor lobbying subordinates on local political issues, U.S. national vulnerability to cyber-attack and the police chief threatening to storm out of a neighborhood meeting. But now that America’s dumbest criminals have reconvened their lawmaking body, it’s easy street for journalistic bottom-feeders to meet deadlines.

To wit: Senate Bill 3794 (House Bill 3798), legislation that would make it illegal to sell, advertise, publish or exhibit to another person “any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs….” For that matter, if you offer to show someone your dildo collection—or possess a vibrator with the intent to show it to someone—you’d be violating this proposed state law. And don’t even think about wholesaling those three-dimensional sex toys.

Of course, as with all good public policy, state Sen. Charlotte Burks and Rep. Eric Swafford have included a few exemptions for responsible dildo-users. College students and faculty are allowed to enter the sex-toy trade—as long as they are “teaching or pursuing a course of study related to such device,” like Auto-Erotic Stimulation 101. Your doctor or psychologist will similarly be authorized to prescribe the regular use of a sex toy “in the course of medical or psychological treatment or care.” And finally, employees of historical societies, museums, public libraries and—wait for it—school libraries are allowed to traffic in devices named Thruster, The Emperor and The Horny Hare, provided they’re doing their official duties. That means the Carnton Plantation would remain free to put up that “Dildos of the Antebellum” exhibit Robert Hicks has been pitching.

What do Burks and Swafford have against genital stimulation? Your guess is as good as ours. At press time, staff members hadn’t returned messages left Tuesday morning, probably because it’s hard to defend such stupid ideas. Attorneys for the state of Georgia couldn’t defend them either: two weeks ago, a federal appeals court overturned portions of a similar Georgia law on the grounds that advertising bans violate free speech rights.

Nonetheless, this Tennessee legislative tag-team went ahead and introduced their bill last Thursday, and on Monday, it passed a perfunctory first reading. In other Monday developments, Tennesseans died from a lack of health care, remained poorly educated and were among the most obese state populations in the nation.

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