SANDY SPRINGS, GA – A funny thing happened along the way to restricting sexual expression in Georgia; it seems the state lost its obscenity statute.When the 11th U.S. Circuit Court of Appeals ruled that Georgia’s obscenity law unconstitutionally limits the free-speech rights of businesses to advertise in late February, the general assumption was that the state legislature would move quickly to craft new legislation correcting the problematic language that led to the statute being stricken by the 11th Circuit.

The state legislature of Georgia, however, didn’t prove as nimble as predicted, and the lack of enforceable state obscenity law has led to some hand-wringing at the local level in Sandy Springs, GA, a city of around 85,000 people located north of Atlanta.

Eva Galambos, Mayor of Sandy Springs, told the Atlanta Journal-Constitution that the Sandy Springs City Council was considering enactment of its own, local obscenity ordinance on the advice of the city attorney, who advised that the lack of a state law “leaves us totally uncovered for the next six months” and “felt necessary to cover us.”

Attorney Alan I. Begner, an Atlanta-based First Amendment specialist who represents several adult businesses in the area, says he sees a “potentially sinister” motivation for passing the city ordinance, an ordinance Begner deems both unnecessary and possibly unconstitutional.

“When you are charged with violating a municipal ordinance,” Begner explained to YNOT in a phone interview, “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.

Begner told YNOT he has defended clients in obscenity cases since 1983 and has yet to lose at trial in a case involving pornographic videos, although he lost one case involving the sale of sex toys in 1995.

“Juries do not convict clerks of selling obscene material in metro Atlanta,” said Begner.

Should Sandy Springs enact a city obscenity ordinance, it would be unique in the state, according to Begner. No other city in Georgia has such an ordinance, largely because “if a state obscenity law were in place, the city ordinance would be preempted,” Begner said.

Begner is also concerned that prosecutions conducted under a new city ordinance in Sandy Springs could be used to gather evidence for use against stores that have challenged the city’s recently enacted adult store ordinance, an ordinance that Begner is currently challenging in US District Court.

Sandy Springs officials, however, contend that there’s nothing untoward behind the consideration of their own obscenity ordinance.

At a City Council meeting on Tuesday, City Attorney Wendell Willard said the ordinance was simply intended to give local governments a means to enforce obscenity laws and “bridge this gap until the state has a chance to do something” about the state obscenity law being stricken, according reports in the Journal-Constitution.

“We’re not looking to go out hunting for violators,” Willard said later. “It’s not a matter of let’s do what we can to harass people. We don’t have any law and [we’re] putting our law in place until the state law corrected – there’s no subterfuge here.”

According to both Begner and attorney Cary Wiggins, who represented the store in Cobb County that filed the lawsuit which led to Georgia’s obscenity law being struck down in the first place, there’s another problem with the obscenity ordinance contemplated by the Sandy Springs City Council; it’s almost identical with the state law that was just shot down.

“The law still may be unconstitutional,” Begner told YNOT, “because they kept in the offensive language that the 11th Circuit found unconstitutional.”

Wiggins concurred, telling the Journal-Constitution it was “overkill” for Sandy Springs to enact “a law that mimics a statute that was held unconstitutional.”

The ordinance being considered by the City Council employs a definition of “obscene” that is very similar to that used nationwide, employing the “Miller test” (in reference to the standard set in the benchmark 1972 case Miller v. California) to determine whether material is obscene.

The ordinance would make it unlawful to sell, lend, rent, lease, give, or advertise material that satisfies the definition of “obscene,” but “protects anyone needing the material for a sexuality class or as prescribed by a doctor,” according to reports in the Journal-Constitution.

The fact that advertising of obscene materials is prohibited under the ordinance is one likely source of trouble for the fate of the law; it was a challenge to the ban on advertising that Wiggins used to challenge the state law.

While the bulk of Georgia’s now stricken obscenity law was consistent with obscenity laws that have traditionally been upheld by the courts, the 11th Circuit agreed with Wiggins’ argument, that the obscenity law’s ban on advertising sexual devices violated the First Amendment’s protection of commercial speech.

If the Sandy Springs ordinance contains the same advertising ban, it is likely to meet the same fate – struck down as unconstitutional, once challenged on the same basis that Wiggins argued in This That and the Other Gift v. Cobb County.

“That obscenity statute cannot be resuscitated,” said Wiggins. “I’m waiting to see how the state will fix it.”