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Aclu Fights Seizure Of Customer List Charge Hard-Core Intimidation Over Soft-Core Videos

Sun., Nov. 10, 1996

The Constitution may not mention “Topless Brain Surgeons” by name, but your right to watch it is in there nonetheless, the American Civil Liberties Union says.

In fact, possessing or watching any commercial film is legal, no matter how explicit the sex scenes or idiotic the plot.

That is why Utah’s ACLU chapter is enraged that Utah County sheriff’s deputies seized lists of video-store customers when they raided two Movie Buffs stores in Lehi and American Fork.

County Attorney Kay Bryson ordered hundreds of soft-core X-rated and unrated tapes seized from the stores’ separate adult-film shelves Oct. 25 after a resident complained that the films were objectionable.

The store responded this past week with a civil-rights lawsuit filed in U.S. District Court for Utah, arguing that the movies are similar to those seen on late-night cable-television channels and are not obscene.

Officers also confiscated the stores’ records of who rented those videos - an action far more objectionable than taking the films themselves, said ACLU executive director Carol Gnade. The potential for embarrassment - especially in such small, conservative towns - is enormous.

“It is an obvious and egregious violation of their customers’ right to privacy,” Gnade said. “They are in danger of having something they’ve done in the privacy of their own homes revealed without their consent.”

Bryson did not return phone messages from The Salt Lake Tribune, but told a television reporter that customers who rented the adult videos may be called as witnesses to testify about the films’ content - a contention hooted at by ACLU attorney Andy McCullough.

“That argument is preposterous. We have the tapes. No court would hear witnesses when they could just judge the content for themselves,” McCullough said. “The only possible reason I can conceive of is to intimidate people and frighten them into not renting such films.”

But there is nothing to be afraid of from a legal standpoint, McCullough says. Even if “Flesh Gordon” or “Sex Trek” or any of the other 250 or so movies are found by a court to be obscene - a possibility he calls remote, since they are “cable versions,” not hard-core pornography like those found in other states - it is not a crime to possess such material.

The raid and resulting controversy have hurt business at the two Movie Buffs stores in Utah County. Jerome Mooney, who represents the video stores, says it is not difficult to understand why. “People are afraid. It’s had a chilling effect.”

Bryson has not said whether he intends to file criminal charges in the case, but has said the seizure was an effort to rid Utah County of pornography.

McCullough suspects another motive. “He’s trying to get the message across that if you try to exercise your First Amendment rights in Utah County, you are at risk,” the ACLU attorney says.

Bryson agreed to federal Judge Thomas Greene’s request that the lists not be used for any investigation until a preliminary hearing is held.

Meanwhile, Gnade says, the ACLU is ready to file suit on behalf of any customer who contacts her office.

Mooney says it is ironic that revealing who rented a videotape would become an issue in Utah. Five years ago, he points out, when senators suggested investigating then-Supreme Court nominee Clarence Thomas’ video habits, Utah GOP Sen. Orrin Hatch “went absolutely ballistic.”

“He insisted they didn’t have that right,” Mooney says. “Now, if they don’t have the right to know what Clarence Thomas rented, they certainly don’t have the right in this case.”

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