In what has to be one of the most absurd 1st Amendment cases of all time, the City of Tulsa became embroiled in what we locally term the "Penthouse Fiasco". Were it not for the immense implications of this case it would have been comical. The case did in fact become fodder for various late-night talk show hosts as it played out before a national audience demonstrating once again that Oklahoma is home to more than its fair share of would be censors.
Fortunately for freedom loving citizens everywhere, sanity, the rule of law and the U.S. Constitution prevailed in the end but not before the Tulsa Police Department and two Tulsa County Districts Attorney managed to make a mockery of each.
The "Penthouse Fiasco" first surfaced with an initial report which appeared in the Tulsa World on 11/7/98, in a report titled "Officers Remove Adult Magazines From Stores". The report indicated two men had been arrested for selling "Penthouse", a magazine which the police alleged was obscene under Oklahoma law.
One of the most interesting aspects of this initial report is that it points out the fact that the Tulsa Police officers charged with busting those selling "Penthouse" conducted their operations at a variety of so called "adult bookstores", making arrests at two such business.
The Tulsa World article quoted a TPD spokesperson as follows:
We are going to be checking and monitoring the adult bookstores over the next couple months to see if they are selling materials that depict penetration. We do not want to be singling any certain locations out.
While this might sound "fair" to a casual reader, only a little common sense is needed to realize that "Penthouse" is sold in numerous businesses, the vast majority of which are not "adult bookstores". The fact that the Tulsa Police Department did not conduct similar raids at the major book seller chain outlets, such as B.Dalton, Barnes & Noble, Borders, Waldenbooks or any other major book store selling "Penthouse" is revealing. Even more revealing is the fact that "Penthouse" is sold in numerous "convenience stores" in Tulsa and not a single such merchant was "raided".
In the immediate aftermath of the initial TPD raids, the Tulsa World carried a report on 11/08/98 titled "Baring the Store Shelves" in which a clerk at a gift and novelty store stated:
"We pulled all of our magazines because we looked at Penthouse and we looked at Hustler and all of our magazines have something like that."
Why did TPD single out ONLY the so called "adult bookstores" when ample targets of opportunity were so readily available?. These targets of opportunity included even the magazine concession at the City of Tulsa owned Tulsa International Airport. Yes, that's right. While Tulsa Police officers were driving all over the city checking out so the so called "adult bookstores" searching for "Penthouse" it was being sold on city property by merchants contracted with the city itself.
On 11/10/98, the Tulsa World in a report titled "Clerks to face porn charges" revealed that charges were pending against the two $6 per hour clerks arrested earlier. This report contains the following quote from Nancy Williams, general manager of retail services at Tulsa International Airport:
We pulled them on Friday. Our legal department is looking into it."
This confirms that a city contracted vendor was violating the very law for which it arrested the two clerks. Double standards, anyone???
As the fiasco unfolded a report titled Law Supports Officers Porn Arrests" appeared in the Tulsa World. The most telling aspect of this report is that it quotes Tulsa Police Capt. Julie Harris, who authorized the raid, as follows:
Harris said the officers, who were working from 7 p.m. to 3 a.m., did go to all stores that were open during their shift.
The article then points out:
However, officers did not visit major bookstore chains including Borders Books and Music and Barnes & Noble, both of which were selling Penthouse at the time. Both are open until 11 p.m.
It is also noteworthy that they did not visit Tulsa International Airport which was also open and where "Penthouse" was being sold at the time.
If this is not a most blatant case of double standards, what is?
By singling out small independent local vendors and $6 per hour sales clerks while ignoring the very same activities in major national chains as well as Tulsa's own airport the Tulsa Police Department made it quite clear that there are two sets of laws and two styles of law enforcement practiced in Tulsa. One set for the "little people" and a totally different set for the national chains and of course the city itself.
With the might of the city and county of Tulsa aligned against two guys making little more than minimum wage the situation looked hopeless. Hopeless that is until Larry Flynt the publisher of "Hustler" announced that he would pay for the legal defense of the two accused men. Suddenly the entire nature of the case changed and the Tulsa County District Attorney's office realized that what had appeared a slam-dunk case had the potential to turn into a fiasco.
This same report provided more details of the conduct of the Tulsa Police Department, conduct which is arguably criminal in nature. The report contains the following, quoting Jerry Truster, an assistant Tulsa County district attorney:
The Tulsa Police Department didn't only take the magazines they bought. They took other materials as well. If the police officers went over the line, they'll just have to return the materials.
I don't know what ADA Truster would call taking materials without paying for them or having a warrant for their confiscation but where I come from this is commonly called "stealing". Evidently this again is another case of different laws for different people.
On 11/13/98, the Tulsa World reported that William Lee Gregory and Darrell Louis Penn, the two clerks were formally charged in Tulsa County District Court.
The Tulsa World article pointed out:
Finding a copy of Penthouse magazine in Tulsa these days is like trying to find a copy of Salman Rushdie's "The Satanic Verses" in Iran.
Which is a pretty accurate summation of the environment in which we live here in Oklahoma. The report also indicated:
Once readily available on shelves in mainstream bookstores and easy to pick out at a number of convenience stores, Penthouse has all but disappeared. Anxious merchants are not complaining. Instead, they are keeping mum, apparently waiting for the controversy to blow over.
On 2/9/99 the Tulsa World reported on the initial courtroom action in the 'Penthouse Fiasco', in a report titled "Clerks Face Magazine Sale Obscenity Trial". This article demonstrated that the Tulsa World reporter had a better grasp of the U.S. Constitution and Supreme Court rulings than did anyone in the Tulsa Police Department, District Attorney's Office or the district court.
The Tulsa World report revealed:
The charges allege that both issues of Penthouse contain pictures of people "engaged in sexual inter course and intercourse which is normal or perverted, actual or simulated, and acts of deviate sexual conduct" in violation of Oklahoma law.
This was the applicable Oklahoma law on obscenity at the time of the "Penthouse Fiasco". It was enacted in the late 1960's, prior to the establishment of the current Supreme Court standards test in the case "Miller v. California", in 1972. The Tulsa World article pointed out that the "Miller Test" requires:
Whether the average person, applying contemporary community standards, would find that the work taken as a whole appeals to prurient interests.
Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law.
Whether the work taken as a whole lacks serious literary, artistic, political or scientific value.
The disparity between the then Oklahoma obscenity law and the three pronged "Miller Test" is so glaring that it becomes apparent that the Tulsa Police Officers , the District Attorney and the presiding judge, involved in the 'Penthouse Fiasco', should all be fired for gross incompetence owing to their inability to read and comprehend that which is readily understandable by most private citizens.
The bottom line being that the Oklahoma law on obscenity at the time was grossly unconstitutional on its face and had been for the twenty six years since the "Miller v. California" ruling by the U.S. Supreme Court. Hopefully one of these days all involved in the 'Penthouse Fiasco' will understand the meaning of the phrase "taken as a whole". But I wouldn't count on it.
This same Tulsa World report quoted Tulsa County Assistant District Attorney Jerry Truster as follows:
"We're not picking on Penthouse
To which one might add, "But you certainly are picking on two working class fellows making little more than minimum wage."
The report also quoted ADA Truster as stating:
"Penthouse does not have to ship that kind of stuff into Oklahoma.
To which one might add, "According to the First Amendment to the US Constitution the publisher of "Penthouse" has every right to ship the magazine into Oklahoma". Of course, in view of ADA Truster's apparent lack of knowledge of that document his view is not that surprising.
The same article went on to quote defense attorney John Coyle III as stating:
The constitution is in great danger in Tulsa."
To which one might add, "So what else is new?"
As the 'Penthouse Fiasco' was beginning to play out in the court, the Tulsa World Editorial Page carried an editorial titled "Let's Review". In that editorial the newspaper's editors asked some very interesting questions, such as:
Did police overstep their authority?
Were the clerks protected by a constitutional guarantee of free speech?
Should salesclerks and no one else have to pay the high price to answer this question for society?
Why were only two stores raided, when perhaps dozens sell this very magazine?
Is the community standard on pornography, established decades ago, still the one citizens want enforced?
Each of the above should have have sent a shiver down the spine of the Tulsa PD, District Attorney and the judge assigned the case. These are very troubling questions for anyone that supports the idea of the rule of law and the US Constitution. Unfortunately these are not traits demonstrated by either the Tulsa Police Department or the Tulsa County District Attorney's office in their handling of the 'Penthouse Fiasco'.
On 3/4/99 the Tulsa World reported that the two accused sales clerks had been ordered to trial, on two obscenity charges each, after the DA successfully appealed an judge's earlier ruling which held that each defendant could only be charged with one offense.
The next Tulsa World report regarding the 'Penthouse Fiasco' was dated 7/1/99 and titled " Obscenity Trials to Go Ahead". It was revealed in this report that the two defendants would receive separate trials. The trial for Darrell Louis Penn was scheduled for October 18, 1999 and the trial for William Lee Gregory would be held on December 6, 1999. These trial dates leaves one to question why such a long delay? Why were these changes left hanging over the heads of these two men, one for over eleven months and the other thirteen months from the time of their arrest?.
Next is a report dated 12/5/99, yes that is over a full year from the arrest, this report titled "Jury Selection Nears for Clerk" indicated that the trial of Darrell Louis Penn was about to begin. This report quotes newly elected Tulsa County District Attorney, Tim Harris, as follows:
District Attorney Tim Harris said Friday that he inherited the case that was filed under a previous administration and sees "no legal basis to walk away or simply dismiss it."
"I believe all the elements of the criminal statute are met and the pictorials meet the statutory language and are obscene."
This means that the trial will finally go forward, once various pre-trial issues are resolved. It also appears to indicate that the newly elected District Attorney is no more familiar with the US Constitution and US Supreme Court rulings than was his predecessor.
On 12/7/99 the Tulsa World reported that the trial was finally underway, in a report titled "Testimony to Start in Obscenity Trial". In this report the Tulsa World indicated:
Lawyers for Penn indicated that they want his jury to know that the magazine in dispute was available elsewhere in Tulsa -- including Tulsa International Airport -- where no one was arrested or charged.
"It shows community standards," Troy said. By leasing space to a vendor who sold the magazine on airport property, the city of Tulsa "was essentially drawing revenue from the sale of Penthouse," he said.
After the well-publicized arrests a year ago, area merchants pulled copies of Penthouse from the shelves.
However, a person seeking the January 2000 issue of Penthouse could have found it Friday, wrapped in plastic, on a shelf at a downtown convenience store.
In a follow up report the next day the Tulsa World reported on the on-going trial in a report titled "Journal Value Argued". The centerpiece of the trial had become a debate over the contents of the magazine and both sides were down to "counting pages" of the magazine itself and attributing so many to news, editorials, advertisements, general interest articles and graphics. It was obvious that the defense understood well the idea of "taken as a whole", a concept that apparently escaped both the Tulsa Police Department and the District Attorney's office.
To the surprise of very few outside the Tulsa PD and District Attorney's Office the Tulsa World reported on 12/9/99 in a article titled "Clerk Wins Obscenity Case" the resounding victory for the 1st Amendment. A victory which led the Tulsa World to editorialize "What's Obscene?". The obvious being it certainly isn't "Penthouse"...
This fact was evidently lost on the Tulsa County District Attorney's office, for on the following day the newspaper carried an article titled "DA to Prosecute Second Clerk". It seems there is no limit on the idiocy existing in the office of Tulsa County District Attorney Tim Harris. A reasonable person would have gotten the message from the first trial.
Come to think of it a reasonable person would not have created or continued this fiasco.
Four months later, on 3/2/00 the Tulsa World carried an article titled "County to Drop Penthouse Case". This delay between the verdict in the fist trial and the announcement there would be no second trial is detestable in that it left the accused 'dangling' for over fourteen months from the time of his arrest. This in no way equates to justice, a quality sorely lacking throughout the entire 'Penthouse Fiasco'. For if there were justice those responsible for this shameful series of events would have been taken to task for their failures and the police officers involved investigated for possible criminal conduct for removing from the book stores items for which they neither paid or had a warrant to seize. This as opposed to the treatment afforded District Attorney by the Tulsa World in an editorial dated 3/3/00 in which the writer stated:
"Tulsa County District Attorney Tim Harris has shown commendable restraint and wisdom in deciding to drop charges against a bookstore clerk accused of selling obscene material."
Had Harris shown commendable restraint and wisdom he would have dropped all charges in the 'Penthouse Fiasco' on the day he assumed office and inherited this disgrace from his predecessor.
In the aftermath of the 'Penthouse Fiasco' the TPD adopted a slightly different approach to the issue of 'dirty books', as was revealed in a Tulsa World report titled "Police Target Sexual Books in Sweep", dated 10/10/00. Quoting from that report:
Tulsa police detectives, responding to questions from City Councilor Todd Huston, went to local book stores three weeks ago and made "suggestions" to store managers to shrink-wrap and move books that police thought could be considered pornographic and accessible to children.
The Tulsa World report quoted a Tulsa Police Department spokesperson as follows:
"We tried to take the approach of informing the book store managers. We wanted to do everything with a sense of cooperation"
Also in this same report was the following quote from TDP Deputy Police Chief Dave Been:
"We don't want to be the morality police. We just made suggestions."
What's noteworthy about this report is the fact that rather than carting away in handcuffs poor $6 per hour sales clerks at 'adult bookstores' these "visits" took place at major chains and "reputable" merchants where according to the referenced news reports the TPD officers only made "suggestions", as opposed to arrests.
This is clearly a case of double standards wherein one group receives the "cuff and stuff treatment" and the other receives "suggestions".
And they call this "justice"?????
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