Obscenity law in focus

Adult video business grows under vague city code

December 4, 2005

JOEL DAVIDSON/Frontiersman reporter

PALMER - Nearly 30 years ago, Palmer passed an ordinance banning the distribution or sale of obscene materials within the city limits, and as long as current city officials can remember, that dictate has never been challenged.

Last month, however, the second-largest home video retailer in the U.S. opened a store in downtown Palmer, with an estimated 30 percent of its merchandise being adult videos.

On the surface, the new Movie Gallery resembles rival Blockbuster video stores. The well-lit store offers promotional handouts picturing smiling children and parents checking out materials. It also offers parental-guidance posters and promotes student video competitions. A doorway near the back section of the store, however, opens into a video-monitored room filled with several dozen shelves and stands containing hundreds of videos with explicit sexual content.

Palmer city code states that whoever knowingly brings obscene articles within the city limits for sale or distribution shall be deemed an ordinance violator.

City officials contacted last week said they were unfamiliar with the ordinance or the new store's adult videos. All agreed, though, that current city code would be difficult to enforce.

&#8220Laws have to be specific,” Palmer City Council Member Tony Pippel said last week. &#8220We can argue all day over what is obscene.”

City Manager Tom Healy oversees the enforcing of city code, but said the 28-year-old ordinance has yet to be tested in his six years with Palmer, and he questioned whether it is enforceable at all.

&#8220I've looked for a definition of obscene and haven't found one in city code,” he said Wednesday. &#8220It would help to have a definition.”

The U.S. Supreme Court consistently upholds a three-pronged test for determining whether materials are considered &#8220obscene” and therefore unprotected by the First Amendment.

In 1973, the nation's highest court ruled that in order to classify materials obscene, a judge or jury must first determine that the average person, applying contemporary community standards, would find the material as a whole appeals to prurient or inordinately sexual interests. Secondly, courts must also find that a work depicts sexual content in a patently offensive way, as measured by contemporary community standards. Lastly, courts must determine that a reasonable person would find the material as a whole lacks serious literary, artistic, political and scientific value.

&#8220Whether the code is worthwhile or not, I don't know,” Palmer Mayor John Combs said. &#8220I can't define obscenity. But my basic take on it is if it offends you, then don't go in those stores.”

Council member Pippel agreed.

&#8220I'm not a big censorship guy,” he said. &#8220I'm a market guy, and if the market demands it, why shouldn't a retailer provide what the people want?”

Fellow council member Brad Hanson, however, said he thought most Palmer residents would consider anything pornographic to be obscene.

&#8220As far as basic pornographic magazines and videos, I suspect that the intent of the original code was to keep those adult businesses out of town,” he said. &#8220The code is indicative of the values of the community, and if the code says no to obscenity, then this is something the council needs to address.”

Council member Kathrine Vanover, like most other council members, said the obscenity code is only one of many city codes that are overly vague.

&#8220We are finding pieces of codes that we really need to clean up,” she said. &#8220A lot of code is old. We have to make it enforceable and legal.”

Like Hanson, Vanover said she thinks the community in general probably opposes businesses that offer adult videos.

&#8220I remember they wanted to open a triple-X adult store on the Palmer-Wasilla Highway about 10 years ago and people came out and boycotted and picketed until they were forced to close,” she said. &#8220At that point it was obvious that there needed to be an ordinance. We have to put an ordinance on our books and make it enforceable.”

The original code was introduced by then-council member John Dolenc in 1978. Now, at age 101, Dolenc can no longer speak. But his wife, Helen, said he just wanted to keep Palmer clear of the prostitutes, nude dancers and racy material that was filtering into Anchorage at that time.

&#8220He was concerned about the quality of the community, and he didn't want that kind of stuff hanging around Palmer,” Helen said. &#8220He was concerned about the quality of life in Palmer.”

Despite the ordinance, adult videos have long been available in Palmer. While Movie Gallery might be the biggest and newest store to offer adult videos in Palmer, it is not the first or only one.

Locally owned Neighbor-hood Video and Pioneer Video also offer adult selections, albeit on a much smaller scale.

&#8220Those other stores have had adult videos in the back corners for years,” said council member Larry Hill. &#8220If adults want to go back there and browse, I have no problems with that. But with a code that is 30 years old, we don't know what the original vision was for it.”

Alaska is one of only 10 states without enforceable obscenity laws. The state allows local boroughs and cities to enact and enforce their own regulations.

The Mat-Su Borough and city of Wasilla each address the issue by explicitly spelling out what materials adult businesses can sell or distribute. They don't, however, define the meaning of &#8220obscene.”

Both the borough and Wasilla governments allow adult businesses to operate, as long as they secure necessary permits through the public process.

The Movie Gallery Web site states that the company has more than 4,700 stores in the U.S., Canada and Mexico, with most outlets located in small towns and rural areas. To date, seven stores operate in Alaska, with only one of those in the Mat-Su.

On Thursday, a Movie Gallery spokeswoman said the company does not offer adult videos in all its stores, but she would not say why or how the company decides to offer them in select communities.

Contact Joel Davidson at

352-2266 or joel.davidson@

frontiersman.com.