Prurient Palpitations

A Progress Report On Councilman José Ibarra's War Against Smut In Our Streets.

TUCSON CITY councilman José Ibarra's publicity-generating crusade against naughty newspapers is currently in a relatively quiet study phase, but expect the issue to surface again -- right around the time of Ibarra's contested November election, with a Council decision due later that month.

The anti-porn prince's priestly pronouncements against the tacky tabloids, which most of his Ward 1 constituents have probably never seen, undoubtedly gives Ibarra something stimulating to talk about during an otherwise lackluster campaign. But the research is costing taxpayers real bucks.

Assistant City Attorney David Deibel is charged with laying out the two options for Ibarra's anti-smut pitch 'n' putt -- enacting a city ordinance, or enforcing a state law already on the books.

It's all to "protect our children" from the curbside free distribution of murky photos of "big-rack babes" and "horn-dog housewives" that seem to be the stock-in-trade of several less-than-juvenile, Denver-based tabloids.

Unfortunately for Tucson's tight-assed, blue-nose community, of which Ibarra is making a strong bid for titular -- or boob -- head, the Tucson Weekly, despite its regular offerings of sexually-oriented ads, is not among that particular class of tabloidal trash the law, whatever its final form, would seek to regulate.

"From my perspective, The Weekly is not targeted at a sexually-oriented type audience," Deibel says. "I think the barrier is higher. That's not to say that you couldn't cross a line. For example, if you began carrying Hustler-type pictures in The Weekly, you might have a problem as to minors."

[Editor's note: Hey, kids! See our new feature, "Hustler-type Photos To Clip 'N' Ship To Your Little Friends," on page 89!]

Arizona law on the subject is patterned after a California statute, which was upheld by the U.S. Ninth Circuit Court of Appeals in a 1996 decision.

The law makes it a Class Six felony (about one step above peeing in public) to distribute matter "harmful" to minors. What does that mean?

Deibel rattles off the standard legal definition of "naughty-naughty" developed by the U.S. Supreme Court over the last 30 years:

"Matter taken as a whole, which to the average person applying contemporary statewide standards, appeals to prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct, and which, taken as a whole, lacks serious literary, artistic, political or scientific value."

"Prurient," for those of you who've forgotten, comes from the Latin prurire, to itch, crave, be wanton.

And who determines what's baaaaad under this definition?

"The trier of fact," Deibel says, which in most cases is a jury. The courts have generally applied the standard to whole publications, not just certain pages, he adds. But if a publication meets that rather complicated formula, "the courts have generally held it loses its First Amendment protection."

The twist in the '90s has been that local governments are applying the standard mostly to protect minors -- easily offended adults are on their own.

"You can have the access restricted," Deibel says. "You can't ban it totally, but you can enact restrictions that would attempt to prevent minors from getting at it."

Of course in today's webulous world, utterly prurient smut is only a mouse-click away.

"While there may be other avenues whereby you can access this material," Deibel says, "that doesn't negate the ability of governments to regulate certain areas that may be deemed to be harmful to minors."

In other words, Johnny's parents may let him subscribe to Playboy, but you're not Johnny, are you?

Why not simply ban the tabloids all together under an anti-littering ordinance?

"Essentially," says Deibel, "what you're saying, I think, is that since these newspaper vending machines are located, by and large, in public rights of way, why not just try to regulate the content of what's in the rights of way? The problem you're going to get in the First Amendment area is a court's going to come in and say, 'That's not the least restrictive means, because it's not going to achieve the governmental interest.' If the governmental interest is the protection of minors, and all I need to do is locate my machines on private property, or distribute them in kiosks free of charge on private property, I haven't addressed the issue. All I've done is regulate the content of what's in the public right of way."

Deibel says it may be possible for the city to seek an injunction against the papers -- to go the civil route rather than the criminal -- on grounds that they're harmful to minors.

Whatever the final method, it looks like Tucson's dirty old men in need of a horn-dog fix will just have to get it the old-fashioned way -- by reading the back pages of the apparently none-too-wicked Tucson Weekly.

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