Watching what you read in Ohio
Further Reading
The First 'American' State
In 1803, the Buckeye State became the
first addition to the Union to be carved out
of the Northwest...
Ohio Goes to the Movies
In 1803, the Buckeye State became the
first addition to the Union to be carved out
of the Northwest ...
In Your Head
In 1803, the Buckeye State became the
first addition to the Union to be carved out
of the Northwest...
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Ohio was in the headlines this month for upholding the eight-and-a-half-year sentence of a man for writing a sexual fantasy in his diary. But the Buckeye State has always been hung up on sex. What's going on?
In 1973, Ohio became the seventh state to decriminalize consensual sodomy. Nearly three decades later, however, a man who sexually propositions another man-- without bodily contact-- can face a fine plus six
months' imprisonment.
In most Ohio cities, gay businesses thrive. Ohio-based gay organizations range from the queer pagan Green Faerie Grove to sober political groups like Stonewall Columbus. The Club Baths chain, perhaps the
most successful gay business venture of the '70s, originated in Cleveland. In 1983, Democratic Governor Richard Celeste issued an executive order barring state agencies from job discrimination based on sexual preference.
But in August, 1999, a few months after taking office, Republican Governor Robert Taft rescinded the state employment provision. By that time, Cincinnati had already become the first American metropolis to amend
its city charter to protect the right to discriminate on grounds of sexual orientation.
Sexual liberationists have won occasional victories in the Buckeye State. In 1994, an Ohio court found consensual group sex that does not involve prostitution to be legal in the state. Yet Ohio's laws regulating sex
and sexually explicit expression, gay and otherwise, seem to be more draconian, more plentiful, and more zealously enforced than comparable laws in most states that still cling to antediluvian sodomy statutes.
In July 2001, when an entry in his private journal earned him a prison term for "pandering sexually oriented material involving or depicting minors," 22-year-old Columbus resident Brian Dalton learned that in
Ohio, even nonexistent children merit legal protection from sexual abuse. (See
The Guide, September 2001.) "It's as if these officials just want to get inside people's brains," Cleveland attorney Kenneth Rexford suggests, "in
order to prosecute them for the darkness within."
Under a 1989 revision of state obscenity law, Ohio prohibits the simple creation of "material" depicting minors engaged in sex. This law applies to any visual depiction or written matter
regardless of whether or not actual children were involved in its
creation. Ohio kiddie-porn laws have a broader scope than most state and federal counterparts, which stress visual depictions. As a result, Brian Dalton is not only the first American ever
to be imprisoned because of the contents of his uncirculated personal diary, he is the first to be convicted on child pornography charges occasioned by a written composition of any kind.
Under terms negotiated with the prosecutor, Dalton pleaded guilty to one count of possessing child porn. His transgression involved a 14-page handwritten fantasy about holding three fictitious children, aged 10 and
11, in a basement cage, and sexually torturing them. Since Dalton had no intention of showing his journal to another person, his crime was the act of committing his thoughts to paper. Since the grand jurors who indicted
Dalton asked the court officer reading the passage to stop on page two, his indictment seems to have been based on the contents of about one and on-half notebook pages.
Dalton had been on probation following a 1998 conviction for possession of child pornography. Though he has never been charged with molesting a child, his thought-crimes earned him a seven-year sentence,
plus eighteen months for violating his parole.
Dalton's plea bargain, says Raymond Vasvari, Legal Director of the Ohio ACLU, "terribly complicates a challenge to Ohio law." On September 4, Franklin County Common Pleas Judge Nodine Miller denied a request
to change his plea, rejecting Dalton's argument that he had expected treatment, not imprisonment. Noting his claim that he had wanted to avoid a humiliating public trial, Miller said, "It is pure nonsense to believe that the
facts of a crime are entitled to secrecy." Attorney Bernard Wolman and the ACLU of Ohio are now preparing an appeal expected to stress ineffective assistance of counsel; Dalton's original lawyer, Isabella Dixon, insists that
Dalton was fully aware of the consequences of his plea. Whether the First Amendment implications of the case will be aired in the course of the appeals process remains to be seen.
The law under which Dalton was convicted has points in common with the Child Pornography Prevention Act (CPPA) of 1996, a federal law whose constitutionality will soon be decided by the Supreme Court.
Passed during a mid-'90s moral panic over Internet porn, the CPPA expands the legal definition of child pornography to include computer-generated images in whose production no actual children are involved-- and, by
implication, any image of any child or apparent child, real or imaginary, that someone in authority wants to brand pornographic. In response to a challenge initiated by the Free Speech Coalition, an anti-censorship arm of the
adult entertainment industry, the Ninth Circuit Court of Appeals found the CPPA unconstitutional in 1999; Attorney General John Ashcroft is now pursuing the case to a final showdown.
A 1990 Supreme Court decision in an Ohio case began a nationwide erosion of the right to private possession of sexually explicit material, and helped bring on the current climate of repression. The court reversed
the conviction of an Ohioan named Osborne caught with a hoard of nude photographs of male adolescents, and granted him a new trial. But a six-Justice majority found in
Osborne v. Ohio that the statute the defendant had
been accused of violating was indeed constitutional. The court affirmed that a state can ban simple possession of child pornography, placing its imprimatur on the Ohio law that laid the foundation for Brian Dalton's conviction.
The majority opinion, delivered by Justice Byron White, cited Ohio's "compelling interest in protecting the physical and psychological well-being of minors;" validated the state's efforts to intercept child porn at
every level of distribution; held that child porn causes "continuing harm" as a permanent record of abuse; and gave credence to the idea that molesters use child pornography to groom children for sex. This was a step
backward from Stanley v. Georgia (1969), which decriminalized possession of all sexually explicit material-- even that which might be deemed obscene.
In a fierce dissent to the Osborne ruling, Justice William Brennan called the Ohio statute "plainly overbroad," and noted that it uses "simple nudity as a way of defining child pornography." He also pointed out that
the majority had created a situation where "a photograph of a child running naked on a beach or playing in the bathtub might run afoul of the law, depending on the focus and camera angle."
Brennan's suggestion that Osborne could help criminalize innocent family photos was widely dismissed. In fact, it pointed to a growing trend in law enforcement that feeds on the urban legend that child
pornographers are in the habit of having kiddie porn photos developed at the neighborhood Fotomat. (Following subsequent developments like the 1993 outcome of
Knox v. the United States, such photos need not even contain
nudity.) Beginning in the '80s, child-porn zealots have targeted hundreds of innocent photographers, amateur and professional, across the country.
Criminal albums
Two notably ugly family-photo cases have erupted since 1999 in Ohio. Oberlin school bus driver Cynthia Stewart, 48, was arrested on charges of pandering child pornography after a photo developer intercepted
pictures of her 8-year-old daughter in the bathtub. A trial was averted through painful bargaining with the Lorain County prosecutor, who imposed six months of therapy, destruction of two of the photographs, and a
coerced, humiliating public statement conceding that these two photos could be considered "sexually oriented." Stewart, who retained custody of her daughter, feels an abiding anger toward Lorain County authorities. "I wanted to
go to jail," she says. "But it was my daughter's childhood that was at stake."
In rural Garrettsville, Karen Lupton, 31, was tried twice on charges based on five digital photographs of her two children. It was claimed that she had created pornographic images of her son and daughter to entice an
e-mail correspondent; her children were separated from her for a time by Portage County Children Services. In Lupton's first trial, the jury acquitted her on three counts, but deadlocked on two. Tried again, she was acquitted
in March 2001.
"I wouldn't want to say that Ohio is any worse than other states," says executive director Bill Lyon of the Free Speech Coalition. "It's a typical, conservative Middle Western-type state. Obscenity cases happen all over."
But some Ohio residents note a trend toward Utah-style measures of repression. "Over the past three or four years there's been a lot of legislation in Ohio and a lot of enforcement," says Kenneth Rexford. "The
suburbs are enacting laws aimed at stopping people from doing stuff they think people
may be doing but that they can't prove they're doing-- laws against suspected drug activity, loitering for prostitution, 'aggravated
disorderly conduct'-- easy laws aimed at getting people into court. There's now a willingness to prosecute cases without evidence."
Ohio law enforcement seems to have stepped up efforts to crack down on sex offenses in parks, toilets, and elsewhere. Among Rexford's clients is 45-year-old Joseph Maistros, charged with propositioning a male
student in a campus restroom. In Ohio lawmakers' quaint terminology, propositioning a person of the same sex is "importuning." Unlike similar laws in other states, the Ohio importuning ordinance is overtly homophobic; a man
may direct a lewd verbal come-on at a woman with impunity, but commits a first-degree misdemeanor if he makes the same overtures to a man. Maistros is preparing to challenge the law on equal-protection grounds; a
second challenge, supported by Lambda Legal Defense, is being pursued by Eric Thompson of Ashtabula County, arrested for soliciting a jogger.
"Legally and politically," says Bob Bucklew of the Lesbian/Gay Community Service Center of Greater Cleveland, "Ohio right now is extremely regressive. We used not to be this way." John Zeh, a journalist who in
the 1980s faced charges in Cincinnati for reading a short passage about lube from
First Hand magazine on a local radio program, remembers a time when "Ohioans were more relaxed. There was a feeling of live and let live."
The present climate partly reflects a demographic shift toward conservative strongholds south of Columbus. Traditionally, Ohio used to be a swing state in Presidential elections. By 1999, however, Ohio had turned
so sharply to the right that Al Gore's Presidential campaign wasted little time courting its electoral votes, effectively handing them over to George W. Bush.
The state is now in the solidly Republican grip of Governor Taft, the Cincinnati-born great-grandson of the 27th U.S. President. "The most disturbing thing about Taft," says Bucklew, "is that he's an
old-money Republican who knows better, but he's willing to sell out thousands of Ohioans for political gain. His actively undermining our rights sends a message to everyone that it's okay to do that."
Ohio's Attorney General, Betty D. Montgomery, has built crowd-pleasing public relations campaigns around consumer protection and victims' rights. According to Bob Bucklew, "Montgomery isn't about justice,
she's about getting elected again. Her victims' rights posture only panders to the right wing." Whether or not there is any conviction behind it, this highly legal form of pandering exacerbates a rising zealotry.
Ohio did not become reactionary overnight. Some of the seeds of the present political situation were planted by Cincinnati attorney Charles H. Keating, a Republican political hack and wheeler-dealer now best
known for his role in the Lincoln Savings and Loan scandal in the 1980s.
In 1956, Keating founded Citizens for Decent Literature. This durable lobby evolved into Citizens for Decency Through Law, then into the National Coalition Against Pornography, and finally into the National
Coalition for the Protection of Children and Families (NCPCF). In activities spanning 45 years, Keating organizations have targeted Russ Meyer sexploitation movies, experimental films like Jean Genet's
Un chant d'amour, softcore girlie magazines, and a broad range of material with gay content.
In the late '60s, Keating served on the Presidential Commission on Obscenity and Pornography, a 21-member Johnson Administration panel whose work extended into the Nixon Presidency. Determining that porn
was largely harmless, an 18-member majority of the commission issued a report in September 1970 urging repeal of all obscenity laws. (This result, swiftly condemned by President Nixon, would be repudiated 16 years later
by Ronald Reagan's Meese Commission.) Keating, one of three dissenters, wrote a vitriolic minority report that called pornography "despicable" and "devilish."
In Cincinnati today, adult bookstores, cinemas, peepshows, or live sexually-oriented entertainment do not exist. Covington, Kentucky, across the Ohio River, serves as the local red light district. Cincinnati is the
city where Larry Flynt was convicted on obscenity charges in 1977 for selling
Hustler magazine. More recently, Flynt and his brother Jimmy, who run a chain of
Hustler-related retail outlets, have fielded several indictments
in Greater Cincinnati for selling adult videos.
Failing to galvanize the public through anti-porn campaigns in the '70s and '80s, Cincinnati smut-busters found a better organizing tool in
The Perfect Moment, a traveling retrospective of work by photographer
Robert Mapplethorpe. The 175 images in the show included several gay sadomasochistic sex photos shot for
Drummer magazine, and two nonsexual photographs of nude or seminude children. On the morning of April 7, 1990,
the day the Mapplethorpe exhibit opened at Cincinnati's Contemporary Art Center (CAC), nine members of a Hamilton County grand jury filed through and concluded that seven of the photographs were legally obscene in
Ohio. That afternoon, a swarm of deputies in SWAT gear showed up with four indictments and shut down the gallery.
The show was allowed to complete its run, but CAC director Dennis Barrie was charged with use of a child in "nudity-oriented material" and five counts of pandering obscenity. In October 1990, he was tried
and acquitted by a jury of ordinary, working-class citizens of Cincinnati.
The anti-Mapplethorpe campaign was spearheaded by Hamilton County Sheriff Simon Leis, a longtime prosecutor who had sparred with Larry Flynt in the late '70s, and had driven adult businesses out of
Cincinnati entirely by 1979. Leis, a conservative Catholic, received organized support from right-wing lobbies, including the National Coalition Against Pornography and the predominantly fundamentalist Citizens for
Community Values (CCV), a local family-values juggernaut launched in 1983. In an ambitious propaganda (and fundraising) effort, CCV mass-mailed lip-smacking descriptions of the seven fatal Mapplethorpe photos to thousands
of churchgoing Ohio citizens. Under the leadership of Monty Lobb, Jr., CCV had begun to eclipse the Keating machine's efforts on behalf of civic rectitude.
After Lobb was succeeded by in 1991 by Phil Burress, a devout homophobe, CCV became the chief perpetrator of Issue 3, a ballot initiative whose approval in 1993 by 68 percent of Cincinnati voters erased
protections based on sexual orientation from the city's Human Rights Ordinance. Despite an injunction that prevented Issue 3 from taking effect until 1998, the anti-gay amendment has now become Article XII of the city
charter. Activists had hoped that a Supreme Court decision striking down a similarly worded anti-gay amendment to the Colorado state constitution would void Issue 3, but in 1998 the high court allowed the initiative to stand.
While a challenge to Issue 3 was pending, Sheriff Leis sought ways to discredit Cincinnati's gay community. In 1994, a production by the Ensemble Theatre of gay Canadian playwright Brad Fraser's
Poor Super Man was harassed; the gay and lesbian Pink Pyramid Bookstore was nearly shut down. A plainclothes detective sent to ferret out porn at the Pink Pyramid found none, but seized a rental video of Pier Paolo Pasolini's 1975
Italian film Salo, or the 120 Days of Sodom, a serious, disturbing work that uses de Sade to mirror fascism.
The local authorities who sought an obscenity adjudication against the Pasolini film seemed oblivious to
Jacobellis v. Ohio, the 1959 Supreme Court ruling-- generated by a Cleveland bust of Louis Malle's
The Lovers-- that determined, in the words of Justice Brennan, that "material dealing with sex in a way that advocates ideas... may not be branded obscenity." (They also ignored the obscenity standard set 14 years later in
Miller v. California.) The Salo case dragged on for two years, finally ending in a plea agreement under which most charges were dropped and the video returned to the shelves, but a face-saving $500 fine was extracted from the
store by Hamilton County.
In 1995, when Sheriff Leis led computer-porn raids that crossed county lines, shutting down the Cincinnati Computer Connection (CCC) and other bulletin board systems, purported gay sex predators were among
his targets. The raids were conducted with input from the Justice Department and from militant porn foe Bruce Taylor, a former Cleveland prosecutor and Keating associate who now presides over the National Law Center
for Children and Families. Searching for "adult pictures" among 250,000 files archived by the CCC, deputies found only a handful of possibly illegal images. A separate set of raids targeted AOL customers. In the aftermath
of the raids, which cost taxpayers over $60,000, a group of BBS users filed a class action suit against Leis; the suit was later dismissed.
Cincinnati lawmen remain on the lookout for targets. The climate they have created insures that many cultural institutions and businesses will practice anticipatory self-censorship. Recently a sexually explicit
vignette was quietly expurgated from Wayne Wang's
The Center of the World by the Esquire Theatre, a Cincinnati art house.
In May 2001, Elyse Metcalf, whose store Elyse's Passion consciously defies the official mores of Greater Cincinnati, was acquitted of obscenity charges based on the sale of three adult videos,
Gangland 15, Kitty Foxx's Aged to Perfection
17, and the gay porn epic Jeff Stryker's
Underground. (In 1999, when Larry Flynt was indicted for retailing the Stryker video, he signed an agreement promising never to sell the tape in Hamilton
County again.) The Cincinnati Enquirer reported that "The case and its outcome are important because the trial was the first recent court test of Hamilton County's community standards."
"This is not going to discourage us," Hamilton County Prosecutor Mike Allen fumed when it became clear that Jeff Stryker's erections met the standards of a jury of his neighbors. Phil Burress, meanwhile, has vowed
to introduce legislation outlawing specific sexual acts on video.
Metcalf could also face charges for operating an adult business without a license, though on the advice of her attorney, First Amendment lawyer H. Louis Sirkin, she has kept adult merchandise down to a fraction of
her full inventory. A recent raid on Elyse's Passion, apparently intended to disrupt a fundraiser, may have been pure harassment.
For the simple reason that Cincinnati is ground zero for repression in Ohio, Metcalf, who dismisses her enemies as "a small minority with big mouths," is determined to remain in business. "My mission is to help
people explore healthy eroticism as part of their being, " Metcalf says. "I am more 'family-values' than any of those organizations that try to suppress erotic expression-- those forces are what really destroys homes, families,
and marriages."
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