A Response to Capital Video Attorney Michael Pill: Intimidation, Rhetoric, and the Facts

Michael Pill, the attorney for pornography franchise Capital Video Corporation, handed out a memorandum (PDF) at the October 19 City Council meeting that seriously misrepresents the facts and issues at stake in the controversy over Capital Video’s plans to open a 6,200-square-foot adult emporium at 135 King Street, adjacent to a residential neighborhood. Dr. Pill (he has a Ph.D.) attempts to blow smoke in the eyes of our elected officials with irrelevant horror stories of runaway censorship, obscuring the very modest and well-tested zoning restrictions actually under consideration. To this end, he makes baseless accusations of harassment, attempting to put a sinister spin on citizens’ exercise of their constitutional rights to participate in the political process.

We note that Dr. Pill is an expert on SLAPP (Strategic Lawsuit Against Public Participation) litigation, who has often defended homeowners against developers’ attempts to intimidate them with burdensome legal bills. Thus, he should be well aware that he is on dangerous ground when he warns Northampton residents not to fight the porn shop because his client’s resistance to adult-use zoning restrictions “could precipitate litigation that may cost each side more than $100,000. Where will the City of Northampton get that money?” he asks, conveniently ignoring the fact that his client has the power to save us that money by not filing frivolous appeals (as they did most recently in Kittery).

Let’s take Dr. Pill’s allegations one at a time. He cites an anonymous Northampton lawyer who was afraid that he, his family and his firm would be harassed and intimidated if he accepted Capital Video as a client. People are afraid of a lot of things. Some people wear tinfoil hats because they’re afraid the CIA can hear their thoughts. That doesn’t mean it’s true. Without any attempt to contact the other side for their story, Dr. Pill charged in with guns blazing, eager to depict NoPornNorthampton and the 1,000+ citizens who have signed our petition as a lynch mob ganging up on poor defenseless free-speech advocates.

What might this “harassment” have consisted of? NoPornNorthampton has not hesitated to publicize the names of local business owners who are on the porn-shop’s payroll, to enable citizens to hold them accountable for profiting at the community’s expense. Boycotts and protests are time-honored weapons against irresponsible corporate greed, essential to the effectiveness of civil rights advocates, environmentalists, and labor unions. You can’t boycott a business that exploits workers and destroys neighborhoods unless you know which one it is.

As Dr. Pill argues in his treatise Strategic Lawsuits Against Public Participation (SLAPP): Substantive Law and Litigation Strategy (Massachusetts Bar Association, 1998), “a real estate developer who applies to a public agency for a license, permit or approval becomes at least a ‘limited public figure'” for purposes of defamation law. NoPornNorthampton is well within its rights to invite public comment on Barry and Annette Goldberg’s decision to rent 135 King Street to Capital Video.

Dr. Pill’s “slippery slope” argument against censorship is legal grandstanding unrelated to the actual issues before the City Council. Unlike the famous Nazis in Skokie, Capital Video is not planning a one-time march through our neighborhood to express whatever ideas pornography is supposed to express–sex equals violence, perhaps, or women are trash. We would agree with Dr. Pill that these ideas, though pernicious, deserve First Amendment protection. No, Capital Video proposes a long-term business presence in Northampton, with a type of enterprise that has well-documented adverse effects on its neighbors. As such it is subject to reasonable siting restrictions like any other business.

Somehow, pornographers themselves have no trouble making the content-based distinctions that Dr. Pill suggests will tie city officials up in knots. When was the last time a copy of the Kinsey Report or Lady Chatterley’s Lover found its way onto Capital Video’s shelves by mistake? “The definition of pornography has shifted dramatically over the years,” he rightly observes–but as his own examples show, it has shifted entirely in a more permissive direction.

Dr. Pill evidently believes that there are cases where zoning boards should heed citizen complaints about possible negative effects of neighboring uses. For instance, in 1998 he represented homeowners who sought to block Amherst’s multiracial Hope Community Church from building a new sanctuary, on the grounds that it would attract too much traffic. (“Plan to build church stymied”, Sunday Republican, April 5, 1998, p. A17.) This litigation cost the church hundreds of thousands of dollars over five years.

Similarly, in 1996, Dr. Pill represented an Amherst couple who wanted to force their next-door neighbor to take down a tepee in her backyard, which she used for meditation, New Age therapy and spiritual drumming. (“Tepee neighbors resume ban effort”, Springfield Union-News, April 9, 1996, p. B1; “Zoning board rules tepee can stay”, Union-News, April 12, 1996, p. B4.) Is Capital Video likely to be a better neighbor to homes, schools, counseling centers and churches than these defendants were? The evidence suggests otherwise.

Based on our own conversations with Dr. Pill, he appears to have strong ideals about defending dissenters and underdogs against oppression. We simply ask him to take a closer look at who is really the “little guy” in this situation. Is it Capital Video–a $21 million business, a leader in an industry that profits from exploiting and demeaning human sexuality? Or is it the residents of a modest neighborhood in a small town, who want to protect their homes and children from the increased crime rates and economic blight that adult businesses cause? How about the men and women who perform in porn films–many of whom get drawn into the industry as teenage runaways, child abuse survivors, or victims of international sex trafficking, and whose working conditions are so Dickensian that they lack even the right to insist on protection against sexually transmitted diseases? Taking the unpopular side is no guarantee that one is defending an important principle. Sometimes a position is unpopular because most people have the sense to see that it’s wrong.

Having taken on Capital Video as a client, Dr. Pill may feel obligated to continue in this role, for fear of prejudicing his client by his withdrawal. While fulfilling that ethical duty, however, we hope he will also consider his duty not to make frivolous and abusive arguments, and restrict his zealous defense of his client to the issues and facts act
ually under consideration, without further personal attacks or irrelevant political rhetoric.

12 thoughts on “A Response to Capital Video Attorney Michael Pill: Intimidation, Rhetoric, and the Facts

  1. Quote: “People are afraid of a lot of things. Some people wear tinfoil hats because they’re afraid the CIA can hear their thoughts. That doesn’t mean it’s true. “

    Some people are afraid that an adult video store will turn their city into Sodom. That doesn’t mean it’s true.

    It’s astonishing that you can tell people that passersby will be subject to harassment if Capital Video opens a store on King St., and say it without evidence, and then turn around and imply that someone who’s afraid of harassment is somehow mentally unbalanced.

  2. People’s fears that adult-use zoning will lead to runaway censorship are without foundation. This zoning has been in force for years all over the country and the dreaded state censorship has not appeared. Citizens have shown they can legislate responsibly to protect themselves while not excessively infringing on free speech.

    On the other hand, our blog is full of evidence that adult uses impose a signficant risk of crime, economic blight, and yes, harassment of neighbors on their surroundings. American courts respect this evidence. To ignore it is unreasonable.

  3. Hey, I’m just asking. Because you don’t seem like you’re lawyers. You seem like undergraduates who have access to some knowledge and some research tools, but you haven’t learned how to use them responsibly, like a grown-up, with restraint and gravitas. You talk about people who keep tinfoil on their heads so the CIA won’t hear their thoughts, and you compare them to your opponents. Did your Ivy-League law professor teach you to argue that way?

  4. The tinfoil hats are relevant because some people have irrational fears. For example, hysteria about runaway censorship resulting from Northampton’s proposed adult-use zoning is irrational. This result has not been seen elsewhere, after decades of experience. The porn shop defenders have produced no evidence of it.

    Fears of the secondary effects of adult businesses, on the other hand, are quite rational, well-supported by the evidence, and accepted as justifiable by American courts.

  5. NPN has quite an operation churning away on nopornnorthampton.org. At first glance it seems as if there can be no other truth – NPN has presented their material in a truly massive way. They pulled out all the stops and have thrown in every negative issue surrounding adult entertainment and directed it at keeping one video store out of their community. They have studies, action requests, and no small share of sad stories from abused former pornographers. Some of the stories are indeed sad. Some of the action requests seem noble. But be careful. NPN has created a hall of funhouse mirrors where it is easy to lose your way if you’re not thinking clearly.

    A deeper look at the methodology that NPN uses will reveal nothing more than smoke, mirrors, and a complete lack of logic in its attempts to keep the video store out of their beautiful, tree-lined community. By presenting the reader with such hyperbole and doom, NPN plays on the emotions of people who either cannot see through the smoke and mirrors or those that simply choose not to. There are lots of bad things that NPN presents, but is that really the heart of the issue? Do we ban baseball because Pete Rose bet on it? NPN confuses myriad issues in an unabashed attempt to get the reader to take its side on a zoning issue. They flood your senses with extraneous (yet seemingly relevant) facts and figures and tell you that YOU support all of those things if you allow the video store into their community.

    After digesting the website, the first thing that came to mind were the propaganda films of Riefenstahl or the hysterical “Reefer Madness.” Powerful imagery, when misplaced, can have disatrous effects on liberties and freedom.

    It’s actually quite troubling how much NPN has put into its website in that it all illogically points back to a single issue for them. By implication, they are equating every bad thing in the adult entertainment industry with the video stores that sell adult entertainment. NPN posts wikipedia articles about the dangers of bodily fluids. They criticize Capital’s attorney for previous cases he has taken. They discuss rape, addiction, and mysogyny. In essence, they carpet-bomb Capital Video and suggest that all will be right with the world if you help them aim their massive guns. This is where NPN turns to outright bullying. They are attempting to tamper with lawful actitivities because they do not like the content of the activity. It is crucial that readers of NPN’s site get this. NPN advocates that readers protest the lawful registration of Capital’s URL. NPN rallies its troops to contact online employment services and tell them to reject Capital’s job postings. This is dangerous territory, and it smacks of harassment. I shudder to think what the parents in NPN’s rank and file teach their children to do when confronted with an opposing viewpoint.

    NPN has every right to protest Capital video. They ha

  6. Just because something is currently “lawful” doesn’t mean it is immune from criticism. The laws are meant to serve the people. When the people find their laws are inadequate to meet present needs, it is their right to change them. That’s what happened in Northampton on November 2.

    We have also said that the law is a crude and clumsy tool to shape human behavior. What we really care about is something finer–for people, as individuals, to choose the good because they have full information. Today’s porn does not represent full information about sex, love or relationships.

    I am amused that we have recently been criticized by one of Marty Klein’s readers for having “No science. No data.” and now here for having so much data that it amounts to “carpet-bombing”. It’s sure hard to please everybody. Bottom line, it’s not the “offensiveness” of the content that bothers us. Plenty of the data on NoPornNorthampton is plenty offensive. What bothers us are the harms adult enterprises impose on communities and individuals, harms that we have indeed amply documented.

    Boycotts and similar actions have a distinguished lineage in this country, and can be highly effective in bringing about social change. The civil rights movement and South African divestment come to mind. These actions are not in themselves categorically “dangerous” or unwarranted “harassment”. Sometimes they are peaceful ways to challenge unfair and exploitative situations.

    Businesspeople have obligations to society that go beyond the bare laws. When they forget this, the people often feel compelled to make more laws. Many in America today complain about our country’s complex and burdensome array of laws. This situation arose in part because some people refuse to restrain themselves. It is regrettable.

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