BY DAN HORN
The Cincinnati Enquirer
Larry Flynt lost the first battle in his war with Hamilton County prosecutors Tuesday when a judge refused to throw out the obscenity charges against him.
Mr. Flynt, publisher of Hustler magazine, had argued that the case against him and his brother Jimmy should be dismissed because Ohio's obscenity law is unconstitutional. But Common Pleas Judge Patrick Dinkelacker ruled that the law is clear and that the charges will stand.
The judge also denied several other motions that sought to dismiss counts in the indictment.
The decision means all of the original 15 charges will remain when the Flynt brothers go to trial in January.
One of the defense attorneys, Laura Abrams, described the judge's ruling as "disappointing" but said it will not change the way the defense team approaches the case.
"We anticipated trying this case all along," she said. "We're ready to try this case, and we're planning on winning this case." The charges stem from the sale of sexually explicit videotapes at the Hustler store the two operate on Sixth Street downtown.
Prosecutors say more than a dozen videos sold by the
store violate community standards for obscenity in Hamilton County.
Defense attorneys, however, argued that those standards are unreasonable because they go beyond the legal test for obscenity that was established in a 1973 Supreme Court decision.
In his ruling, Judge Dinkelacker cited two cases -- one from California and one from Ohio -- that he said indicate Ohio's law is acceptable. He also overruled a defense request to throw out a charge linked to the sale of an adult video to a 14-year-old boy.
Larry Flynt has said his store employees are under orders to check identification, and his attorneys complained in court that the charge was so vague it was impossible to find out which employee is said to have sold the tape.
But Judge Dinkelacker said it was not unreasonable to assume the teen-ager could not remember the date of the sale or the identity of the clerk. Therefore, he said, it would be impossible for the teen to share that information with prosecutors.
"Such circumstance is not fatal to the prosecution," the judge wrote in his decision. "It is not inconceivable that a 14-year-old would not remember the specific date an item is bought at the store."
The judge also concluded that prosecutors properly instructed the grand jury before it voted to indict the Flynts on obscenity charges.
Defense attorneys had asked the judge to review transcripts of the grand jury proceedings to determine whether prosecutors accurately explained the complex obscenity law.
"The transcripts clearly show a proper instruction to the grand jury," the judge wrote.
The Flynts' trial is set to begin Jan. 19. If convicted, each faces a maximum sentence of more than 20 years in prison.