Cincinnati- Abandoning his free speech argument, the attorney for homemade porn queen Jennifer Dute said Tuesday she should have pandering obscenity charges against her dismissed because they violate her right to privacy.

“The right to privacy and making sexual choices,” attorney Lou Sirkin said, should convince Hamilton County Common Pleas Court Judge Norbert Nadel to toss out the four pandering obscenity charges against her.

His argument is based on a case in Alabama where courts there ruled that selling sexual devices and “marital aids” through the mail wasn’t illegal because they were used in private.

Nothing involving the transaction of the sexual aids was in public except the advertisement for their sale, Sirkin said.

“We believe times have changed,” Sirkin said.

That drew a quick response from assistant prosecutor Brad Greenberg, who won a conviction of Dute that was overturned on appeal.

“The times may have changed, but the law has not,” Greenberg told the judge. “This statute is constitutional. It has been challenged many times and has held to be constitutional.”

Invoking privacy rights for a woman who makes money by selling videos of her having sex with multiple partners — as her husband operated the camera — was an ironic argument, Greenberg noted.

“This case does not involve the right of privacy. It involves a public sale of allegedly obscene videotapes,” he said.

Dute, 33, of Anderson Township, was convicted in 2002 of pandering obscenity after selling via mail to undercover Hamilton County’s Sheriff’s deputies copies of her videos, believing the deputies were legitimate customers.

She was arrested because under a 1999 plea bargain where she was charged with selling her homemade porn, she agreed to never again sell the videos in Hamilton County or to its residents in exchange for escaping time behind bars.

The sale in 2002 to the deputies violated that plea deal, prompting her arrest.

A jury, after watching several of her videos, convicted her. Common Pleas County Judge Patrick Dinkelacker sentenced her to one year in prison.

Dute, who is pregnant and was in court Tuesday, served about seven months of that sentence before her conviction was overturned by a divided appeals court that ruled she should get a new trial because the jury that convicted her was not allowed to view another porn video that a previous Hamilton County jury found not to be obscene.

Prosecutors appealed that ruling and the Ohio Supreme Court ruled in September that Dute should get a new trial.

Nadel will rule at an undetermined time in the future whether she gets the new trial or the charges are thrown out.

After her 1999 conviction, Dute opened a Web site that taunted Sheriff Simon Leis for arresting her, something that drew deputies’ attention to her and ultimately led to them ordering her videos to see whether she would mail them to the officers.

As part of her conviction, she gave Hamilton County the ownership rights to that Web site.