SANDY SPRINGS, GA – A previously delayed vote on a proposed municipal anti-obscenity ordinance was held Tuesday by the Sandy Springs City Council, with the ordinance passing unanimously despite concerns that the law contains provisions similar to Georgia’s recently invalidated statewide obscenity law.The ordinance renders it “unlawful to sell, lend, rent, lease, give or even advertise obscene material,” according to reports in the Atlanta Journal-Constitution, but includes an exception for people “needing the material for a sexuality class, or as prescribed by a doctor.”
The Eleventh U.S. Circuit Court of Appeals ruled Georgia’s state obscenity law unconstitutional in February, finding that provisions in the law represented an impermissible restriction of commercial speech protected by the First Amendment.
Following the 11th Circuit’s ruling, it was generally assumed that the Georgia state legislature would quickly move to enact a new statute to replace the one invalidated by the Court, but the legislature has not acted as swiftly as anticipated, leading a number of communities in Georgia contemplating their own “solutions” to the lack of an enforceable obscenity statute.
City Attorney Wendell Williard said Tuesday that the new ordinance would “fill a void” and provide Sandy Springs with a means of enforcement as well as “criminal prosecution of what would be obscene,” according to the Journal-Constitution.
Councilman Rusty Paul said that concerns about provisions within the ordinance accepted Tuesday led him to twice suggest tabling the vote so the Council could gather more information, and seek more legal guidance, but that after further review, he agreed that the ordinance was needed.
“The concern was, do we want to become the poster child for this issue?” said Paul. “After reviewing it, we felt convinced it was something we need to do to give us a tool to regulate and control the kind of material distributed in the community.”
Atlanta-based First Amendment attorney Alan Begner, who represents several adult businesses in the Sandy Springs area, contended that the new ordinance is part of the city’s plan to “do away with the customer’s rights to read or buy sexually explicit material in Sandy Springs.”
“I still return to the question of ‘why do they need this law?” asked Begner at the meeting Tuesday. “The only explanation is to harass stores and clerks for selling videos that are not illegal and the fallout for that could be, again, substantial.”
Eva Galambos, Mayor of Sandy Springs, has said repeatedly that the ordinance was under consideration because the lack of a statewide law left Sandy Springs “totally uncovered for the next six months,” and that the ordinance “felt necessary to cover us.”
Both Councilman Paul and Mayor Galambos asserted that the city has no plans to “crack down” on adult businesses in the area, despite passing the tough new ordinance.
“We’re not going to go out and declare war,” said Paul. “That’s not what the intent was. We just felt ‘Go ahead and give us something we can use,’ in case the establishments already here decided to bring more graphic material in.”
Should the Georgia legislature successfully enact a new statewide obscenity statute when it reconvenes later this year, such statute would supersede the municipal ordinance in Sandy Springs, another reason why Begner is skeptical about the City Council’s intent in passing the ordinance.
In an interview with YNOT in June, Begner said that he saw a “potentially sinister” motivation in the city council’s crafting of the ordinance.
“When you are charged with violating a municipal ordinance,” Begner explained, “you have no right to a jury. You sit before a Municipal Court judge, who then decides if the material is obscene.”
By avoiding a jury trial, it allows the city to “go after stores that it couldn’t otherwise go after for distributing ‘obscene’ material,” said Begner.
If the law is too similar to the recently invalidated statewide statute, Sandy Springs could face a legal challenge to the ordinance. Adult businesses in the area, however, might choose to simply wait for the state legislature to pass a statewide obscenity law that preempts the municipal ordinance.
