The anti-obscenity ordinance that Stevensville’s Dallas Erickson hoped to enact in the Bitterroot Valley has been temporarily shelved on account of a recent legal challenge brought by Ravalli County.
Erickson says he dropped his petition effort to bring the obscenity ordinance before voters after Ravalli County convincingly argued the ordinance violates Montanans’ right to privacy and is thus unconstitutional.
“They brought up an issue that on second look did cause us some concern about the Supreme Court,” says Erickson. “We decided the easiest way to handle it for everyone would be to drop the petition for now and make some changes.”
Erickson still insists the ordinance is largely legitimate. In October 2006, District Judge Jeffrey Langton ruled it was constitutional because it’s tailored to regulate distribution of obscenity, which is hard-core pornography that meets the U.S. Supreme Court’s test for material not protected by the First Amendment. But Ravalli County’s March legal challenge picks up on an aspect of the ordinance that wasn’t addressed by Langton: a provision that punishes someone who “performs an obscene act or otherwise presents an obscene exhibition of his/her body to anyone.”
That could apply to sex acts between consenting adults in a private home, Ravalli County argued, which violates Montanans’ constitutional right to privacy.
“The county clearly has an interest in protecting its residents from distribution of obscene materials,” County Attorney George Corn wrote. “However, it does not, cannot, and should not have an interest in regulating acts performed between two people with no intention of distribution.”
Erickson says he plans to modify the ordinance so it only applies to distribution of published material, and again bring it forward next March to get it on Ravalli County’s November 2008 ballot. At that time, it almost certainly will face a fresh challenge from Bitterroot officials, who also argued Erickson’s ordinance is illegal because it limits free expression, is inconsistent with state law and doesn’t give citizens fair warning about what all is included in the elusive definition of “obscene.”