Nassau County, Florida- Nassau County officials will have a fight on their hands if they enact a contemplated pornography ban, said an attorney for adult store Adam & Eve, located on A1A in O’Neil.

“Obviously from a constitutional standpoint, the ordinance as drafted is blatantly unconstitutional,” said Lawrence Walters of Weston, Garrou, Walters & Mooney, an Altamonte Springs law firm specializing in censorship issues. “Obviously Nassau County is not the first county to try to outlaw porn. The other counties I’ve seen have quickly come to realize such a law is unconstitutional.”

The proposed ordinance would bar the sale – but not the private possession – of pornographic material in Nassau County. “They’re trying to draw a distinction between commercial and personal possession, and that’s just not going to fly in our view,” Walters said.

The draft ordinance would prohibit the sale of material featuring “specifically described sexual conduct,” including “material utterly without redeeming social value.”

Walters said that is on especially shaky constitutional ground. The question, he said, is who would be the arbiter of what constitutes “redeeming social value.”

“That’s the problem with all of these ordinances that attempt to define pornography – it all comes down to some law enforcement officer’s subjective view of what’s pornography and what is not,” he said. “… The First Amendment is not designed to protect the majority view or the community’s sense of decency. The First Amendment is designed to protect the edge views.”

Walters added that the proposed ordinance came as something of a shock to the owners of the Adam & Eve franchise in O’Neil, which has operated without much controversy after the initial uproar over its opening in 2005.

“There were some protestors, but they’ve faded away. There’s not the crime people said would be here; there aren’t people in trench coats hanging around outside. Ultimately we were able to prove to the county that we were going to be able to be a good corporate citizen,” he said. “… We’ve had a good relationship with the county after those initial hurdles, and we’re a little surprised at this.”

Walters also cautioned that any ordinance which harmed Adam & Eve’s business could be the subject of legal action – which he’s confident the county would lose.

“It’s going to be a disaster for the taxpayers, who’ll end up footing the bill not only for the county attorney’s time, but for my time if we end up challenging this,” he said. “… I’ve got plenty of other work, and there’s lots of censorship to go around in this country, so I don’t need another case – but if we’ve got to do it, we will.”

Walters stressed that in recent years courts have been more sympathetic to the rights of adult business owners than in the past. “It used to be when we’d go and talk to a jury on these cases, we’d ask, ‘Who here has seen an adult film or magazine?’ and one guy would timidly raise his hand,” he said. “Now we have to ask, ‘Who hasn’t seen an adult film?’ People just aren’t shocked about that type of thing anymore.”

Some county officials agree that the ordinance in its present form is practically inviting a lawsuit.

“I do think we’d get sued,” County Attorney David A. Hallman told the county commission at its Aug. 15 meeting. “I think we’d get taken to federal court.”

Commissioner Mike Boyle suggested the ordinance might be unnecessary because Nassau County does not have that large a market for adult-themed material. “These businesses only open up where they can make a dollar,” he said.

Still, Commission Chair Marianne Marshall instructed Hallman to analyze the legalities of both the draft ordinance and a less restrictive approach suggested by Boyle, so both could be considered at a later date.

Walters said any anti-porn legislation could infringe upon his clients’ First Amendment rights. “(The county commissioners) need to talk about this in terms of individual freedoms. They need to change the tone and terms of this debate. … That’s a right that people have fought and died for,” he said. “(Commission-ers) didn’t take an oath to uphold their personal beliefs, they took an oath to uphold the Constitution.”

Still, Walters said, he wasn’t surprised that the proposed ban comes in an election year.

“Obscenity prosecutions, vice ordinances, it all comes up this time of year,” he said.

Marshall was defeated in her bid for a fourth term Aug. 26 in the Republican primary election, which might take some of the steam out of the anti-porn effort.

What would be banned:

The county’s draft ordinance on pornography would prohibit the sale of material featuring “specifically described sexual conduct.” According to the ordinance, that means one of the following:

“(1) rape or sexual battery; non-consensual intercourse, sodomy, or oral sodomy

“(2) incest

“(3) the involvement of an actual minor

“(4) bestiality

“(5) multiple penetration by multiple partners of body orifices

“(6) visible penetration during intercourse, sodomy, or oral sodomy

“(7) visible ejaculation, urination, menstruation, bowel movements, ejaculate or feces

“(8) visible penetration of a bodily orifice with a digit, hand, foot, or inanimate object

“(9) the dead

“(10) material utterly without redeeming social value.”