BY DAN HORN
The Cincinnati Enquirer
Larry and Jimmy Flynt want a judge to throw out their obscenity case because they believe the charges against them are unconstitutional. In pretrial motions filed Tuesday, the Flynts' lawyers argue that Ohio's obscenity law is too restrictive and violates a standard set years ago by the U.S. Supreme Court.
The Flynt brothers face a trial in January on 15 obscenity charges for selling sexually explicit videotapes at their Hustler bookstore downtown.
Larry Flynt, publisher of Hustler magazine, owns the Sixth Street store while his brother, Jimmy, runs it.
Prosecutors say more than a dozen videos sold by the store violate community standards for obscenity in Hamilton County. Defense attorneys argue in their motions that those standards are unreasonable because they go beyond the three-part test established in a 1973 Supreme Court decision.
"Our feeling is the law is unconstitutional," said one of the Flynts' lawyers, H. Louis Sirkin. "Our clients did not commit a crime."
The motions were filed late Tuesday, and prosecutors could not be reached for comment.
According to the Supreme Court, Mr. Sirkin said, material can be declared obscene only if:
The average person would find the work, taken as a whole, appeals to a prurient, or unhealthy, interest in sex.
The work depicts, in a patently offensive way, sexual conduct specifically defined by state law.
The work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Mr. Sirkin said Ohio law is far more restrictive because it defines obscene material in a more general way. State law, for example, classifies obscenity as material with a "dominant tendency to arouse lust by displaying sexual activity . . . that tends to represent human beings as mere objects of sexual appetite."
In their motions, the Flynts' attorneys argue that the state's definition is "blatantly unconstitutional" and would prevent citizens from exercising their free speech rights.
"Such a devious intent by a state legislature to negate fundamental constitutional freedoms cannot be sanctioned," the attorneys wrote in their motion.
A hearing on the motions is scheduled for Friday before Judge Patrick Dinkelacker of Hamilton County Common Pleas Court.
