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Obscenity conviction sends porn peddler packing

Nevada- On December 4 USA Today published an in-depth article about pornography.
The main thrust of the article was that small communities can do little to stem the tide of what the author terms “freeway porn.”

Freeway pornography, as defined by the USA Today article, is stores, usually part of much larger chains, that suddenly spring up in small communities, effectively overwhelming small-town district attorneys with a paper blizzard of constitutional issues.

“We’ve never had a store shut down by legal issues or challenges,” bragged Sandi Summers, an executive in the Lion’s Den Corporation, a large porn outfit which owns a chain of adult stores. “We’re just as legal as any other business.”

But on the same day the USA Today article was published, a 23-year-old Ruston, Louisiana man, chose the stiff terms of a plea agreement rather than face three years in Angola State Prison after being convicted of selling obscene materials.

Dan Sasha Birman was found guilty by a Lincoln Parish Jury in late November and had been free on $25,000 bond while awaiting sentencing.

At the sentencing hearing Birman agreed to a plea agreement whose terms put him out of the pornography business for at least three years, gave him a suspended three year prison sentence, three years of felony probation, a fine of $2,500 and court costs. Birman also agreed to not appeal his conviction to a higher court.

In return the state agreed to not prosecute Birman on the remaining three counts of his indictment and if he successfully fulfills the terms of his probation, will clear his record of the felony conviction.

Birman opened his pornography business, called Fantasy Video, in a bright pink building on the Interstate 20 Service Road between Grambling and Ruston early this spring, prompting an immediate outcry from local churches. Petition drives, billboards and newspaper ads denouncing pornography and a prayer walk of about 1,200 people did little to slow down the growing business.

That changed in June when videos bought at Fantasy Video by undercover Louisiana State Police detectives were shown to a Lincoln Parish Grand Jury. Birman was promptly indicted on four counts of selling obscenity and arrested.

Birman’s defense team consisted of A.M. Stroud III, of Tutt, Stroud & Bordelon LLC, a Shreveport firm; H. Louis Sirkin and Jennifer M. Kinsley, of Sirkin, Pinales, Mezibov & Schwartz LLC of Cincinnati, Ohio, and John E. Herbison Nashville, Tenn., who promptly filed a 14 page brief with 23 pages of the recent Supreme Court decision in the landmark Lawrence V. Texas case (the so-called Texas sodomy case) that overturned 17 years of judicial precedent.

The firm of Sirkin, Pinales, Mezibov & Schwartz LLC were the attorney’s that successfully represented pornography king Larry Flynt.

They were faced by Robert “Bob” Levy, a determined 3rd Judicial District Attorney and Assistant 3rd Judicial District Attorney Laurie Whitten, who prosecuted the case.

Birman’s attorney’s claim he has a “right of privacy” guaranteed by the Constitution; that Louisiana’s obscenity statute violates the guarantee of due process and the recent Supreme Court ruling in the infamous Texas sodomy case, should be applied to Louisiana as well, Levy said in an interview prior to the trial.

“They’re trying to establish a ‘right of privacy’ via the Fourteenth Amendment to the Constitution, and it isn’t there,” Levy said. “It’s going to be rock and roll time – this is going to be some real stuff and I’m looking forward to it.”

As Levy predicted the defense flooded the court with motions including a motion claiming a right of privacy.

“Although the United States Constitution does not explicitly guarantee a right of privacy, the United States Supreme Court, in a series of various factual and legal settings, has gradually recognized that the right to privacy is a constitutionally protected liberty interest embodied in the Due Process Clause of the Fourteenth Amendment to the United States Constitution…,” the defense brief said.

Levy argued the law allows people to own and view pornographic materials in the privacy of their homes but that law does not extend the so-called right of privacy to sellers of the material.

Prosecutors opposed the motion to quash by claiming that even though the defense claimed it was protecting a “right” or “liberty interest,” there is no legal authority to back that position and the Supreme Court ruling in the Texas sodomy case was narrow and did not apply to Louisiana’s obscenity laws.

Third Judicial District Judge R. Wayne Smith, agreed with prosecutors and the case went to trial in Ruston.

The three-day trial ended when the jury returned a guilty verdict after 3-1/2 hours of deliberation. The sentencing hearing was set for Dec. 4, coincidentally giving both sides time to negotiate the plea agreement.

“This is a good day for Lincoln Parish,” Levy said after sentencing. “I can only hope that we have now discouraged other adult store operators from opening in our community. This case has set a precedent in Lincoln Parish. We will examine carefully the sale of these types of materials, if we find such to be occurring, of similar (materials) as those that were sold at Fantasy Video, I think the operator would be doing so at his peril.”

Birman was visibly upset after he was sentenced and announced he was leaving Ruston to open a restaurant in New Orleans.

“The only thing I’m guilty of is assuming that the First Amendment of our Constitution protected my freedom of speech even if some people of this community disagree with me,” Birman said. “This case was not about pornography, it was about our freedom to choose for ourselves what we watch, no matter what community we live in because we live in the community of the United States of America. I’m sad to announce that due to this unjust act of censorship imposed upon me and the people of Lincoln Parish with the threat of imprisonment, I have agreed to close Fantasy Video and with that I have unwillingly contributed to a trend of censorship that will deeply hurt the future and freedoms of the people of Lincoln Parish?”

In addition to having to close the store, Birman agreed to numerous other conditions including taking down all billboards and other advertising, taking down his website and agreeing to not transport obscene materials into the parish.

“This case was not about freedom of speech,” Levy said after the sentencing. “It was, according to the jury, about the commercial sale of obscene materials and the right of the people of the parish to set their own standards.”
 

 

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