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First Amendment, Criminal Matters

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By FindLaw Staff on February 16, 2010 3:29 PM

The Eleventh Circuit decided two cases today: one concerning an adult establishment's First Amendment challenge to an ordinance prohibiting it from serving alcohol, and another concerning a defendant's conviction for knowingly acting in the U.S. as an agent of a foreign government.

In Flanigan's Enters., Inc. v. Fulton County, Ga., No. 08-17035, plaintiff challenged under the First Amendment a county ordinance prohibiting the sale, possession, and consumption of alcohol in adult entertainment establishments.  The district court granted summary judgment for plaintiff.

The Eleventh Circuit reversed on the ground that the evidence showed that the ordinance attempted to insulate the communities surrounding the adult entertainment establishments affected by the ordinance from the "secondary effects" that tended to accompany those businesses, and thus survived intermediate scrutiny.

In US v. Duran, No. 09-11446, defendant appealed his conviction for knowingly acting in the U.S. as an agent of a foreign government, which arose out of his involvement in attempting to cover up the so-called "Suitcase Scandal" between Venezuela and Argentina.

The court of appeals affirmed on the grounds that: 1) the plain language of 18 U.S.C. section 951 and its corresponding regulations gave notice of what was prohibited and were readily understandable to a person of ordinary intelligence; 2) section 951's plain language made it clear that it was a general intent crime, as there was no mens rea element on the face of the statute; and 3) the district court did not abuse its discretion in excluding evidence of mens rea to show that defendant and his co-conspirators did not know of the notification requirement under section 951.

Full text of Flanigan's Enters., Inc. v. Fulton County, Ga.

Full text of US v. Duran

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