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Protesters, Lion’s Den both claim free speech is on their side

From Indystar.com:

UNIONTOWN, Ind. — As the white minivan pulled into the parking lot, Joyce Gillaspy jumped from her lawn chair, grabbed her clipboard and quickly wrote down its license plate number. At the same time, her friend, Debbie Howard, took a picture of the driver.

The idea: to potentially embarrass anyone who walks into the Lion’s Den, an adult sex shop off I-65 in this rural Jackson County town 80 miles south of Indianapolis.

Their ultimate aim, though, is to shut the store down.

It is a conflict that has dragged on for nearly three years, pitting residents of this sparsely populated farming area against the Ohio-based corporate owners of a chain of about 30 Lion’s Dens.

The conflict reflects the latest clash of small-town values, including a heaping serving of religious fervor, against what some here view as an increasingly hedonistic and dangerous world.

Like other such fights, zoning laws are part of the equation. But an even bigger legal issue is present: the First Amendment rights that both sides claim as their own.

While the lawyers fight it out, the more visible battle is being waged a stone’s throw from the interstate exit. Every hour of every day since the Lion’s Den — a 24-hour, seven-day-a-week business — opened here in August 2005, Gillaspy, Howard or someone else in their group of Christian activists and others has maintained the parking lot vigil.

Their organization, called Jackson County Watchdog, has set up on an abutting plot of county-owned land where its wooden shed — with its towering cross — provides members shelter and where signs offer free Bibles and warn drivers that they enter the store at the risk of being exposed online at www.war-line.org.

Truck drivers are given special attention: “Warning truckers. If you visit this adult bookstore, we will take your picture and send it to your employer,” one sign reads.

Late last month, the fed-up owners of the Lion’s Den filed a lawsuit against Jackson County and some of its officials. In the suit, the owners note that the shed set up by the protesters on county land was erected without a permit, and yet the county refuses to do anything about it.

And that, they contend, is a clear indication that the county is showing favoritism to the protesters — in violation of the Lion’s Den’s constitutional rights.

The store further claims the protesters’ actions have cost it $300,000 in lost business over a six-month period. The next step is for the county to formally respond to the suit, which should happen within six weeks.

The suit creates a free-speech riddle that more than one First Amendment expert said would make a challenging law-school exam question:

Does the privilege lie with the store owners, who say the county should protect the Lion’s Den’s right to do business without subjecting its customers to the harassment posed by the protesters, or with its opponents, who say the county should protect their right to protest?

“The First Amendment seems to cut both ways here,” said Neil Richards, a law professor who specializes in privacy and First Amendment issues at Washington University in St. Louis. “The business has a pretty good claim they’re being discriminated against because the county doesn’t like their message. On the other hand, one of the great red flags is the use of . . . laws (like the zoning ordinances) to punish people because they don’t like their message.”

No favorites

The Lion’s Den thinks the county needs to be neutral rather than play favorites.

“The speech that my clients engage in and the point of view they represent is not popular among some segments of society and government officials in Jackson County,” said J. Michael Murray, the Cleveland-based attorney representing the Lion’s Den. “The whole point of the First Amendment is to protect views that aren’t popular with people of power.”

Jackson County’s lawyer, Stephen Pierson, sees it differently.

“We’re bending over backwards to make sure protesters get their First Amendment rights,” while allowing the Lion’s Den to run its business, he said.

Pierson also noted that farmers in the county frequently build sheds similar to the one the protesters erected, and that the zoning ordinances are not strictly enforced.

The battle began after locals discovered that what they thought was going to be a truck stop was an adult superstore, selling items such as sexually explicit videos and sex toys.

Because the land was zoned for “general business,” the store had to get a permit to set itself up as a “retail business” but did not have to disclose to the county what type of business.

News of the Lion’s Den came on the heels of the rape and murder of Katie Collman, a 10-year-old girl who lived in nearby Crothersville.

Ralph Sweany, a retired engineer who acts as the protest group’s leader, said the store was more than the small community could bear during its time of grief and said that its existence added to the potential that another incident like Katie’s rape and death could occur again.

“We decided we were going to do something,” Sweany said. “We’ve been doing something about it ever since.”

Today, at least 35 residents from Jackson and neighboring Jennings counties take turns monitoring activity at the store.

Not everyone from Jackson County supports the effort.

Marshall and Patricia Davis stopped at the store recently. The couple, who lived in Uniontown for more than two years and now live in Mississippi, said they were visiting the store merely to irritate the watchdogs.

“I think it’s stupid,” said Marshall, 58. “It’s really none of (the protesters’) business to tell other people what to do.”

Not discouraged

Protesters say they’ve been physically threatened by store patrons; obscenities have been shouted at them; and sex toys have been thrown in their yards. None of this has discouraged the group.

Stationed in front of the store — a one-story, tan concrete building with white shutters — Gillaspy and Howard greeted the driver of the white van with an admonishment.

In this case, they did not approach the arriving customers, nor offer them one of the 20 or so Bibles stacked inside the shed, as others in their group have done. But the women are just as fervent about the issue as any other member of their group.

“You move into the country because you want your kids and grandkids sheltered from this,” said Howard, a mother of two grown children who lives about a mile from the store. “We really didn’t have a chance to stand against it before it came in.”

Though the attorney representing the county said its zoning ordinances are not always strictly enforced, that was the very tool the county used to try to keep the Lion’s Den from opening.

County Commissioners passed a zoning ordinance to ban the store about a month before the Lion’s Den moved in — and sued its owners the day it opened. That case is pending; the county’s bid for an injunction to close the shop was rejected.

Resolution unknown

How this battle will play out is anyone’s guess.

Proving that Jackson County is playing favorites may be tough for the Lion’s Den, particularly because local governments are allowed wide discretion when it comes to zoning enforcement, said Richard Garnett, a University of Notre Dame law professor specializing in constitutional law and the First Amendment.

He also said that just as the store has a right to operate, the protesters have a right to protest, as long as they’re not posing a threat of violence.

“No one has a constitutional right to be free of other people’s criticism,” Garnett said.

Murray, the Lion’s Den’s lawyer, said the store is not asking the county to stifle the protesters’ message, only to enforce its zoning ordinances.

Regardless of the lawsuit’s outcome, protesters say they will stay “however long it takes” to get the store to shut down.

“It’s been three years,” Gillaspy said. “What’s three more?”

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