Cleveland Co.'s Sexually Explicit Pix: First Amendment Covers Swinger Mags

CINCINNATI (TDB) -- A federal appeals court today struck down as unconstitutional a U.S. law that required producers of "actually sexually explicit conduct" to keep records showing the images depict adults over age 18. The decision was a legal victory for Connection Distributing Co., a Cleveland firm that publishes a dozen or so magazines and an online portal aimed at swingers. Warning: There are some pretty racy photos accessible by clicking around the company's Web site. Connection challenged the law as a government attempt to censor its business.

The 6th Circuit U.S. Court of Appeals in Cincinnati said the record-keeping requirements of the Child Protection and Obscenity Enforcement Act of 1988 were intended to combat child pornography. But most of the swingers in the magazines are middle-aged and not likely to be mistaken for minors. The three-judge panel declared Justice Department efforts to apply the rules to the publisher of magazines aimed at adults who were seeking partners for sex exceeded the government's authority. The court noted that Connection described swinging as a philosophy entailing "an alternative social and sexual lifestyle comprised mostly of mature adults who believe in sexual freedom and do not believe in sexual monogamy."

The magazines contain ads and messages, and the messages often are accompanied by photos of Connection subscribers. Sometimes they are undressed, and sometimes they are in street clothes. But there are times when they are engaged in sex, or showing off all the goods to attract partners.

Senior Circuit Judge Cornelia Kennedy wrote the court's decision and noted that the government's argument that it was trying to curb child abuse was unpersuasive. The case is Connection Distributing Co., et al. v. Kesler and the full-text of the 27-page decision is available here. Kennedy wrote:

"Images, including photographs, are protected by the First Amendment as speech as much as 'words in books' and 'oral utterances.' Even if the government tried to characterize the regulation as aimed at the conduct of pressing the button on a camera or other recording device to create images, that conduct would be so closely tied to the speech produced, and the government's interest here is in the speech produced, that it would be better considered to be a speech regulation. Child abuse, the actual conduct in which the government is interested, is already illegal."

She added:

"Applying the record keeping regulations to all depictions of actual sexually explicit conduct between two adults, however, is not clearly within the statute's plainly legitimate sweep. One of the reasons the government wants to know a depicted individual's age is because the government has a difficult time knowing when to prosecute as well as prosecuting successfully because it is hard to identify the image as that of a child. The government claims that such identification is made difficult because images of individuals 18 and older exist. If these images did not exist, then the only images left would be children, and therefore the proof would be easy. The solution, it is argued, is to require photographs of both adults and children to be kept track of, so that the government will know that a photo it is currently viewing is not of a child, but in fact of an 18-year-old."

Ohio's Tectonic Shift: Reports From 'Liberal' North Sound Like 'Conservative' SW

CINCINNATI (TDB) -- Any minute I expect to pick up a map saying Cleveland and Toledo are on the Ohio River and Cincinnati is built upon the shores of Lake Erie. Because something is plumb topsy-turvy about the state. Its north shore -- the liberal Democratic heartland -- seems aflame with reports of Free Speech oppression.

Tom Suddes, my old colleague from the newspaper business, always contended the "mouthbreathers," his word for the crowd most uncomfortable with people who liked to exercise their constitutional rights, infested downstate Ohio. They were generally Republicans who had gun racks in every pick up truck spotted south of Interstate 80.

Could be he was wrong. Could be that NEO is now SWOhio. Could be the heat. Something is out of sort with Ohio's political map because anti-taxers managed to collect enough signatures in Hamilton County (ground zero of Suddes' mouthbreathers) for a ballot measure aimed at repealing a proposed sales tax hike for a new jail -- and NOBODY was arrested or pushed around by the authorities who imposed the tax. Contrast that to what's happened in the liberal Up North these past few days.

The anti-tax crowd is being hassled when they try to circulate petitions against a sales tax increase in Cuyahoga County. This follows a Kent anti-war protester being ticketed for sticking an "Impeach Bush" sign in a public garden last month. And it fits right alongside Toledo Mayor Carty Finkbeiner's Aug. 12, 2007 order that closed a public park so anti-Nazi protesters from the University of Toledo could not raise cane about the fascists in our midst.

There's more. Gloria Ferris had a difficult time trying to collect names on anti-tax petitions near Jacobs Field, where a cop and security guard tried to keep her at bay. Gloria said:

"We weren't there ten minutes when we were told that we would have to move along by a security guard. I asked where we could stand, and he said I will get my supervisor if yo want. I said no don't bother I will ask that Cleveland Policeman over there. The security guard very politely kept insisting I should speak to the head of security at Jacobs Field. Probably because the police officer said he didn't know what was public or private.

"By that time, someone else in our group had talked to the head security guy who told him that three feed from the street was public . . . Of course, the cop told us that the three foot stretch would be too dangerous for people so our best bet would to be on the other side of the street. These locations were simply feeds into the main area and were not efficient for gaining large amounts of signatures."

And this is what the Toledo Blade reported today about the decision to close the park to the University of Toledo students who wanted to express concern about the Iraq War and supporters of Hitlerism. Sadly, they were prohibited.

By comparison, the land of the mouthbreathers has been pretty tame. People can complain about taxes, abortion (Cincinnati-based judges have been dismissing cases against abortion protesters) and, one supposes, even Nazis. Nobody in power seems to get their nose out of joint. Of course, they don't breath through their nostrils.

Ohio Peace Activist's Free Speech Fight: Cops Removed His 'Impeach Bush' Sign

CINCINNATI (TDB) -- A few years ago, a federal appeals court in Ohio ruled an anti-abortion protester's Free Speech rights were infringed when he was arrested for carrying a placard displaying a fetus while strolling during an Akron suburb's Memorial Day parade. And last month, the 6th U.S. Circuit Court of Appeals said Cincinnati wrongly arrested an abortion protester for trespassing near a clinic as he tried to stop a woman from entering.

Free speech guaranteed by the U.S. Constitution saved both men from criminal prosecution. Now there is another case that will make history from Ohio -- a Kent police officer ticketed an anti-war protester last month for putting an "Impeach Bush" sign in a public garden. The case is making its journey through the legal system and the first stop is in the Portage County Municipal Court. At the heart of this matter is this question: Can signs espousing political causes be erected in public places; does their removal amount to government censorship? It is a very close call.

Protests and protest signs have been part of the landscape in Washington's LaFayette Park across from the White House for year now. They are one of the city's tourist stops.

And anti-abortion protesters, for example, have been granted latitude to display protest signs along public sidewalks near Planned Parenthood clinics. Groups rent stadiums and convention halls built with public funds all the time, then use them for rallies where they proclaim support for all kids of causes. Years ago in Cincinnati, Ronald Reagan's 1986 campaign committee was sanctioned by a court for blocking protesters who wanted to carry anti-Reagan signs to a GOP rally on Fountain Square. And Cincinnati has been prohibited from refusing to grant a permit to the KKK, which wanted to place a cross -- its symbol of racial hatred -- on the same square in the heart of downtown. There's more: The Supreme Court has ruled that newsstands can't be stopped from being placed on city streets.

Kevin Egler, who wants Bush impeached, says he has been putting anti-war messages all around Ohio and neighboring states since October. Egler told Plain Dealer reporter James Ewinger that the cop who gave him a ticket July 25 in Kent remarked: "Why don't you put the signs in your own yard?"

If Egler is ever in this neighborhood, he's weclome to drop by with one of his signs. Perhaps his call for impeaching the president is a little extreme. But the guy is right to stick up for Free Speech. If Bush had any sense he'd invite him to the White House and stick one of the signs out on the lawn. It would show the whole world what this country stands for -- that every citizen has the right to speak his mind and nobody is afraid of that.

Pro-Life Protest: Court Says Cincy Cops Wrongly Interfered

CINCINNATI (TDB) -- Joseph Michael Logsdon stages peaceful demonstrations outside abortion clinics in Southwest Ohio, and Cincinnati police violated the anti-abortion protester's rights when they arrested him in 2003 and 2004. The 6th Circuit U.S. Court of Appeals said he was a regular presence outside the Cincinnati Women's Services clinic and was charged with criminal trespass and disorderly conduct.

In the first incident, Logsdon said he went to retrieve a sign on the clinic's grounds that was taken by a clinic official. The sign was aimed at patients and said, "God has a plan for your baby."

The second incident was in June 2004, when he went into a public park adjacent to the clinic and spoke to a patient through a chain link fence. An officer took him into custody.

A three-judge appellate panel today reinstated the lawsuit Logsdon filed against the three police officers who halted his protests. He contends his First Amendment right to free speech and Fourth Amendment right against unlawful detention were violated. The original case was dismissed by U.S. District Judge S. Arthur Spiegel earlier this decade. In reinstating the pro-life protester's case, the 6th Circuit said:

"Reading plaintiff's complaint in the light most favorable to him, defendants failed to reasonably determine whether they had probable cause. In the course of initially assessing whether probable cause to arrest existed, defendants respectively 'turned a blind eye" to potentially exculpatory evidence when they refused to listed to witnesses at the scene.

"A prudent officer must draw reasonable conclusions from the facts and evidence known to him as supported by 'reasonably trustworthy information.' It appears that defendants deliberately excluded from a totality of known facts and circumstance information that might bear on the accuracy, reliability, or trustworthiness of the report that plaintiff has trespassed on CWS's (Cincinnati Women's Clinic) property."

Ohio Mayor: Injunction Permanently Opens His Mouth

TOLEDO (TDB) -- Toledo Mayor Carty Finkbeiner agreed to a permanent injunction today in U.S. District Court that requires him to admit a Clear Channel Inc. radio talk show host to all news conferences. The city's Law Director, William H. Bracy, signed the injunction. A violation would subject Finkbeiner to a penalty for contempt.

Finkbeiner also must notify the AM talk station's news director in advance of any public press conferences. The mayor has feuded with radio talker Kevin Milliken, a critic who works for Clear Channel's 1370, WSPD-AM. Milliken crashed a news conference earlier this month. City officials tried to keep him out because the mayor did not consider him a reporter, but "an entertainer for talk show radio." The mayor cancelled his news conference and began meeting individually with members of the media to avoid Milliken. City officials described the sessions as "briefings."

Finkbeiner wants to build a bicycle path on the city's south side, a plan the radio station dissed. Somehow, the hot air churned up a legal gale over free speech, free press and access to government officials.

The radio station filed suit in federal court claiming a First Amendment violation, and won a temporary restraining order against Finkbeiner earlier this month. Now the order is permanent.

U.S. District Judge James G. Carr said during a hearing earlier this month that he favored open news conferences over private gabs between politicos and journalists.

"That's the whole point. And maybe it's not such a bad thing . . .to the extent that there might be some restraint on the part of any public official developing that kind of relationship with members of the press to the exclusion of others, I happen to think, that's not all bad. More sunshine, more disinfectant, more light, more knowledge, a better informed public. That's a risk that I think is well worth imposing," Carr said.

In Toledo today, the First Amendment reigns supreme at City Hall. The case is Citicasters Co., d/b/a WSPD Radio 1370 et al, v. Carleton Finkebeiner, in his official capacity as Mayor of the City of Toledo et al; No. 07-cv-00117. Bracy represented the city. Thomas G. Pletz, of Shumaker, Loop & Kendrick LLP was the lawyer for Clear Channel.