Clarksville, Arkansas from www.arktimes.com – I heard this morning from John Wesley Hall, one of the attorneys for three clerks at X-Mart, the porn store in Clarksville, who were cleared by a Clarksville jury yesterday of criminal charges for selling obscene merchandise, hard-core movies featuring the likes of anal intercourse.

I thought some of Hall’s assessment of the law and “community standards” in Arkansas were worth passing along.

It was the second obscenity rap Hall has helped beat. He now has a win in western and eastern Arkansas. Tell me NWAers and LAers, would it be any different in your part of the state?

FROM JOHN W. HALL (edited for length and clarity)

What is far more significant [than the verdict] is that this is the second acquittal in seven months in Arkansas, in only two trials. In Forrest City, there was a week long trial of a far different nature ending the Friday before Labor Day that was a bitter crusade against porn that also resulted in an acquittal. These two acquittals, nearly 200 miles apart in rural Arkansas so close in time are a near revelation about community standards in Arkansas.

I made an impassioned plea in my motion for a directed verdict that the obscenity statute was passed in 1981 based on the 1973 Miller case from the U.S. Supreme Court. That was before VCRs were in every home and the adult industry exploded from a couple of movie theaters here and there to nearly every city of any size having a store that sold or rented adult materials.

Then came DVDs, then came DirecTV and Dish Network with hard core channels available to those who wanted to buy (DirecTV’s is ch. 590-597), then came the Internet. I put into evidence on an offer of proof that there are 33.6 million homes with satellite television; broadband via cell phone (according to ATT ads) covers 95% of Americans, and according to a CNBC report online, Arkansas is 6th in the nation for Internet porn. (Utah is No. 1). There are dozens of free hard core porn sites and an infinite number of subscription sites; I offered to show the court the free sites from the laptop in the courtroom. (None of that got to the jury.)

My argument was a free market and libertarian argument that the fact this store has been in existence for 5 years shows the community standard because, if it wasn’t viable, they’d have closed and moved elsewhere. And, the free market alone should determine what the community standard is. If an adult Arkansan wants to buy sexually oriented material involving other consenting adults, it is not the state’s business to tell us what we can or cannot buy to watch at home.

Therefore, under the Arkansas Constitution and the First and Fourteenth Amendments, extrapolating from Jegley v. Picado and Lawrence v. Texas and other cases, and the fact the Arkansas Constitution would be interpreted more broadly (and see the Cole case from Thursday reaffirming Jegley), it should no longer be a crime in a free society to sell adult sexually oriented materials to other consenting adults in 2011.

My motion was denied. However, essentially that same argument was made to the jury in closing argument just 30 minutes later. They deliberated about 90 minutes.

Back story: July, 2010: The First Amendment and the right to maintain a business are two issues confronting all communities. The X-Mart Adult Supercenter in Clarksville has propelled these two issues to the forefront of local discussion for the past five years.

A lawsuit is currently ongoing against X-Mart for non-compliance with a city ordinance. After the store opened in 2005, a 22-page ordinance defining the parameters of the business was written by City Attorney Bruce Wilson. The ordinance states an adult store must be located in an industrial zone. X-Mart was required to abide by the ordinance within three years.

“At the expiration of the three-year period, the Defendant sought and was granted a six (6) month extension which expired on July 17, 2009” (sic), according to a pre-trial brief.

On Sept. 14, 2009, the city of Clarksville filed a complaint alleging X-Mart did not file an extension.

Attorneys for X-Mart responded on Feb. 10, 2010, alleging the city ordinance for sexually-oriented businesses infringes on the store’s right to the free speech provision of the Arkansas Constitution.

“The city allegedly was required to and did not establish adverse secondary effects that would be addressed by the Ordinance,” stated the pre-trial brief.

Wilson would not comment on the case as it was still ongoing. John Wesley Hall, one of the attorneys for X-Mart, was only able to confirm what was stated in the pre-trial brief.

There are at least three additional lawsuits involving the store pending in court.

In order to work at the X-Mart Adult Supercenter, employees have to obtain a sexually-oriented business license. The license is administered through the Clarksville Police Department.

In order to obtain a sexually-oriented business license, the employee must be over 18 years of age and not declared a nuisance by a court of law. Employees must wear their license or keep it on the premises while they are working.

According to a police report, Clarksville Police Chief Greg Donaldson assigned deputies to investigate X-Mart after receiving numerous complaints regarding obscene materials prior to March 2009. Drug Task Force (DTF) agents were assigned to the case.

Outfitted with digital audio and video equipment, officers purchased adult DVDs at the store on March 24, 2009. The clerk for the purchase was Brooke L. Smith, 31, of Lamar. Smith was also the clerk when DVDs were purchased on Sept. 16, 2009.

Officers visited the store again on Sept. 15, 2009, where they again purchased adult DVDs. The clerk for this purchase was Dennis G. Freeman, 23, of Glenn Falls, N.Y.

Upon further investigation on Oct. 8, 2009, DTF officers reentered the store for more items for their investigation. The clerk on duty was Christine A. Parker, 31, of Dover.

Smith, Freeman and Parker have been charged with promoting obscene material. They are out on bond pending their trials. Smith and Parker are to be tried together July 30. Freeman’s trial will begin Aug. 19.

“Obscene material as defined by Arkansas law is not protected by the First Amendment and it is therefore criminal,” 5th Judicial District Prosecuting Attorney David Gibbons said.

By law, officers who purchase materials also have to review the content in order to determine whether there is probable cause for an obscenity case.
“They go in and look at what’s available,” Gibbons said. “Then, they look at the material for probable cause, and then the determination will be up to the jury.”

Andre May, store manager of X-Mart, said he did not understand how the sheriff’s office could issue a license but yet arrest his employees.

“If we’re doing something wrong, then the store shouldn’t be open,” May said.