Judge rejects Flynt defense team’s challenge to Ohio obscenity law

Thursday, December 3, 1998

Hustler publisher Larry Flynt will get his wish for a trial on obscenity charges next month, since a state judge on Nov. 30 rejected his attorneys' legal arguments that the Ohio obscenity law violates the First Amendment.

Last April, Flynt and his brother Jimmy were indicted for selling sexually explicit videos at a sex novelty shop in Cincinnati. The 15-count indictment includes 12 charges of either “pandering obscenity” or “disseminating” obscene material to juveniles. The Flynts pleaded not guilty after being arraigned last June.

Flynt's legal team, headed by Cincinnati-based attorney H. Louis Sirkin, filed several motions challenging the charges on constitutional and other legal grounds.

In one of the motions, Sirkin petitioned the judge to dismiss the obscenity charges because the state law was “a blatantly unconstitutional statute which incorporates into its prohibitions constitutionally protected forms of expression.”

Sirkin contended that the state law did not meet the constitutional guidelines that the U.S. Supreme Court established for obscenity in the 1973 case Miller v. California. “The Ohio law is much more restrictive than the Miller standard,” Sirkin said.

Under the Miller test, material can be considered obscene if:

  • “The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.”

  • “The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.”

  • “The work, taken as a whole, lacks serious literary, artistic, political or scientific value.”

    Under the Miller standard, a work cannot be obscene if it fails to meet any part of the test. In other words, a work that describes sexual material in a patently offensive way but has serious artistic value could not be considered obscene.

    However, the Ohio law does not incorporate the language from Miller. Instead, a literal reading of the Ohio statute indicates that material can be considered obscene if any of a number of criteria are met, such as if “the dominant tendency” of the material is to “arouse lust.”

    Hamilton County Common Pleas Judge Patrick Dinkelacker, in a two-paragraph opinion, rejected the Flynt team's motion, writing that “this Court must and will overrule the motion.”

    Dinkelacker based his decision on a 1978 Ohio Supreme Court opinion, State v. Burgun, in which the state high court interpreted the statute to conform to the Miller test.

    In legal papers, Sirkin said that in Burgun the state high court “undeniably ignored long-standing rules of statutory construction and engaged in the long-prohibited practice of judicial legislating.”

    Sirkin also argued that the obscenity law was unconstitutional because the Ohio state legislature had amended or revised the statute four times since the Burgun decision.

    “When the legislature took it upon itself to revise the statute, it had the opportunity, and indeed the obligation, to revise the obscenity definition to comport with the dictates of Miller and to ensure that the statute was no longer facially unconstitutional,” Sirkin wrote.

    Dinkelacker also rejected several other motions by Flynt's defense team, including challenges to two conspiracy counts and one count of engaging in corrupt activity.

    After the judge had rejected the claims, Sirkin acknowledged (to the First Amendment Center) that “in reality Larry wants a trial.”

    Sirkin said that the “issues needed to be raised in order to preserve them on appeal.”

    “I was disappointed because I believed strongly in these arguments,” Sirkin said. “However, we knew we faced an uphill battle in convincing the judge that the obscenity law was unconstitutional.”

    The trial is scheduled for Jan. 19.