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NM Supreme Court reverses ‘Pornotopia’ conviction

ALBUQUERQUE, N.M. — The American Civil Liberties Union of New Mexico just won a Supreme Court decision centering on the “Pornotopia” film festival in 2008.

The court reversed the Guild Cinema’s $500 citation for showing “Couch Surfers: Trans Men in Action,” which the city said violated zoning rules.

In overturning the lower courts’ ruling, the Supreme Court concluded, “Because the Guild engaged in only occasional showings of adult films, the Guild is not an adult amusement establishment as defined in the Albuquerque Code of Ordinances, and the zoning rules governing adult amusement establishments are inapplicable to it. We therefore reverse the Court of Appeals and vacate the Guild’s conviction.”

ACLU-NM Executive Director Peter Simonson said in a release, “Common sense dictates that hosting one erotic film festival does not make the Guild Cinema an ‘adult amusement establishment,’ any more than a club that plays jazz music one night out of the year is a ‘jazz club.'”

In February, I covered the court hearing, which has all the background. That full story is below.

Full text of the New Mexico Supreme Court ruling is at the end of this post.

More to come.

by Dan McKay / Journal Staff Writer | Thu, Feb 14, 2013

Justices hear Guild Cinema porn case

How many pornographic films does it take to qualify an art-house theater as an “adult amusement” establishment?

The New Mexico Supreme Court considered that question and others Wednesday during a hearing over the Guild Cinema’s $500 citation for showing “Couch Surfers: Trans Men in Action” in 2008. The film was screened that year during the “Pornotopia” erotic film festival, which hasn’t been held since.

The justices critically questioned attorneys for both the Guild and city of Albuquerque, but didn’t announce a decision. Some of the discussion centered on whether — or how — pornography contributes to crime and other problems.

“What is it about watching porn that makes people go out and commit a crime?” Justice Charles Daniels asked the city at one point. He later added, “You’re old enough to remember before we had Internet porn in the Hyatt Hotel. Did you see some changes occur in the Hyatt and Hilton and all that when all the rooms began to be supplied with porn?”

Assistant City Attorney John DuBois answered the Hyatt question with a simple “No, your honor.” But he also said research shows negative effects when adult entertainment is concentrated in a particular place.

The court could overturn or uphold the Guild’s citation. Depending on the wording, its decision could have broader implications for the legality of Albuquerque’s “Adult Amusement” ordinance, which restricts where adult films can be shown. Both the city and Guild agreed that the theater’s Nob Hill location isn’t zoned for adult amusement establishments.

Laura Schauer Ives of the local American Civil Liberties Union said the Guild’s citation stemmed from one film watched by city inspectors. That shouldn’t be enough to trigger a violation under the city’s ordinance, she told the court.

“The Guild shouldn’t be deemed an adult-amusement establishment just because the city of Albuquerque says it is,” she said. “… A business that plays jazz one night of the year and country music the rest of the year wouldn’t call itself a jazz club.”

DuBois, however, said zoning laws can be enforced whenever there’s even one violation. The city, he said, doesn’t have to wait until adult films are shown repeatedly and lead to complaints about crime, property values or other problems.

As for the Guild’s First Amendment rights, DuBois said, the city doesn’t prohibit adult films altogether, just in certain zoning categories. Indeed, there are nine adult establishments in the city where the film could have been shown.

“The issue before this court,” DuBois said, “is not if (the Guild) can show ‘Couch Surfers: Trans Men in Action’ to the citizens of Albuquerque who wish to pay to see it. The issue is, Where can they show it? This is a zoning land-use case.”

The justices also had pointed questions for Schauer Ives. They asked whether, in her view, a whole weekend or weekends of adult films would be enough to warrant a violation.

She said that only one showing was at the center of this particular case.

There were two “Pornotopia” film festivals in Nob Hill: one in 2007, the other in 2008. The city filed a criminal complaint after the second one, which, after appeals, resulted in Wednesday’s case before the Supreme Court.

The city restricts where adult amusement establishments can be located. Such an establishment is defined as a place that “provides amusement or entertainment featuring” films that have an emphasis on certain anatomical areas or sexual activities.

Full text of the New Mexico Supreme Court ruling

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