Ordinance 1149 - Emergency Pornography Ordinance79
7i
ORDINANCE NO. 1149,
AN ORDINANCE REPEALING OR NO. 957, AS AMENDED, ESTABLISHING
THE OFFENCE OF DISSEMINATING OBSCENE MATERIALS, DEFINING TERMS,
PROVIDING A PENALTY AND DECLARING THE EXISTENCE OF AN EMERGENCY.
WHEREAS, the City Council of the City of Kalispell has determined
that the dissemination of obscene materials constitutes a public
nuisance and presents a danger to the health, safety and welfare of
the citizens of the City of Kalispell, and
WHEREAS, Section 45-8-201(5) Montana Code Annotated authorizes
the adoption by said City of an ordinance more restrictive as to
obscenity than the existing provision of Section 45-8-201, MCA, and
WHEREAS, the City Council has determined that an ordinance prohi-
biting the dissemination of obscene material must be enacted immediately
as an emergency measure for the preservation of the peace, health and
safety of the residents of the City of Kalispell.
NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL AS FOLLOWS:
SECTION I. Unless otherwise specified in this Ordinance,
all words will be taken in the objective standard rather
than in the subjective, and unless a different meaning
plainly is required, the following definitions apply to
this Ordinance:
A) Disseminate means to transfer, distribute,
dispense, len , show, display, exhibit, send, trans-
port or broadcast in exchange for consideration.
B) Obscene means any material or performance,
whether through pictures, photographs, drawings,
writings, cartoons, recordings, films, videotapes,
or other such medium, which:
1) the average person, applying contemporary
community standards, would find the material or
the performance, taken as a whole, appeals to the
purient interest; and
2) the material or performance depicts or
describes, in a patently offensive way, sexual
conduct, sadomasochistic sexual abuse, or lewd
exhibition of the genitals; and
3) the material or performance, taken as a
whole, lacks serious literary, artistic, political
or scientific value.
C) Material means any book, magazine, newspaper
advertisement, pamphlet, poster, print, picture,
figure, image, drawing, description, motion picture
film, phonographic record or recording tape, video
tape, or other tangible thing capable of producing
or reproducing an image, picture, sound or sensation
through sight, sound, or touch.
D) Performance means any motion picture, film,
video tape, played record, phonograph, or tape
broadcast, preview, trailer, play, show, skit,
dance, or other exhibition performed or presented
to or before an audience of one or more, or trans-
mitted by means of an electrical, radio, television,
telephonic, or other communicative device or
facility to a known `closed or open circuit audience
f
of one or more persons or to the general public.
72
E) Person means any individual, corporation,
company, partnership, firm, association, business,
establishment, organization or other legal entity
of any kind.
F) Prurient means a lustful, lascivious, erotic,
shameful, or morbid interest in sexual. conduct,
sexually explicit nudity, sodomasochistic sexual
abuse, or lewd exhibition of the genitals.
Materials or performances may be deemed to appeal
to the prurient interest when they have a tendency
to excite lustful thoughts or lascivious desires,
or when they are designed, marketed, promoted or
disseminated to cater or appeal to such an interest.
Where the material or performance is designed for
and primarily disseminated or promoted to a clearly
defined deviate sexual group, rather than the public
at large, the prurient appeal requirement is satis-
fied if the dominant theme of the material or
performance, taken as a whole, appeals to the
prurient interest in sex of the members of that
intended and probable recipient group.
C) Sexual conduct means ultimate sexual acts,
normal or perverted, actual or simulated, involving
a person or persons, or a person or persons and
an animal, including acts of masturbation, sexual
intercourse, fellatio, cunnilingus, anilingus, or
physical contact with a person's nude or partially
denuded genitals, pubic area, perineum, anal region,
or, if such a person be female, a breast.
H) Sadomasochistic sexual abuse means actual or
simulate lagellation, rape, torture, or other
physical or sexual abuse, by or upon a person who
is nude or partially denuded, or the condition of
being bound, fettered, or otherwise physically
restrained, for the actual or simulated purpose
of sexual gratification or abuse as represented
in the context of a sexual relationship.
SECTION H. A person commits the offense of disseminating
obscene material, when with knowledge of the general nature
and character of the material involved, he:
A) purposely or knowingly disseminates obscene
material
B) knowing or having reason to know that the
material will be disseminated, purposely or
knowingly finances the manufacture or production;
produces, manufactures, directs, photographs,
poses, acts, or in any way assists in the production,
copying or reproduction of visually represented
obscene material or advertisements for any obscene
material.
SECTION III. It is an affirmative defense to charge under
this Ordinance that the material or performance involved
was disseminated or promoted for a bona fide medical, psycho-
logical, legislative, judicial or law enforcement purpose,
by or to a physician, psychologist, psychiatrist, legislator,
judge, prosecutor, law enforcement officer, or other person
having a bona fide interest in such material or performance.
SECTION IV. A person convicted of the offense of disseminating
obscene mgerial, or otherwise vipjat�ng any.., provision of
this Ord inance;"'s11-6u1'n
R d"�piunishe'd'gs"`'prpvidedby Dr"d�inance
N o . 8 3`4t" �( 'e'c t on` is- 9` -1'0 , Ka l` i s e.l' i C i ty bode`
)`
73
1
1
SECTION V. If a part or provision of this Ordinance or the
application thereof to any person or circumstances is held
invalid under the laws of the State of Montana or of the
United States, such invalidity shall not effect any other
parts or provisions or applications of this Ordinance which
can be given effect without the invalid part or provision
or application, and to that end the parts and provisions of
this Ordinance are declared to be severable.
SECTION VI. Ordinance No. 957, as amended, in its entirety,
is hereby repealed.
SECTION VII. An emergency is hereby declared to exist in
to City of Kalispell because the dissemination of obscene
material within the City is deleterious to the health,
safety and welfare of the community. Under the provisions
of Sections 7-5-104 and 7-5-4204, MCA, this Ordinance shall
take effect immediately and expire from and after 90 days
of its. passage by the City Council and approval by the
Mayor.
PASSED BY TWO -THIRD VOTE OF THE CITY COUNCIL AND APPROVED BY THE
MAYOR THIS 21st DAY OF MAY, 1990.
ATTEST:
Amy H Robertson
City Clerk -Treasurer
Rogyr W. o ins, Mayor