No ordinance would likely ban controversial sign in Windham

By Terry Date
Staff writer

May 15, 2008 10:35 am

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WINDHAM — Tinkering with rules that regulate signs for adult businesses is a slippery proposition. But that's just what some people in town would like to happen.

Some people are looking for action after a controversial sign for the XXXPosed adult video store, featuring a silhouette of a scantily clad woman, was installed on Rockingham Road last month.

Planning Board member Ruth-Ellen Post said she wants to at least consider changes to the town sign ordinance.

She said she understands how the sign would disturb a mother with young children. In fact, she said, she would avoid it if she were transporting a young child.

But Planning Board Chairman Phil LoChiatto said there is little the town can do if a sign meets the letter of the law.

"It's a slippery slope, legislating (good) taste," he said.

And an author of the town sign ordinance said a change to the ordinance wouldn't stand up to a legal challenge. The American Civil Liberties Union agrees.

Ross McLeod, a former Planning Board member, said a change to the ordinance could be challenged in court on free speech rights grounds, rights guaranteed by the Constitution. McLeod, a lawyer, was heavily involved in the rewrite of the town sign ordinance in 2002-03.

He said if the Planning Board wanted to deny a sign on the grounds of obscenity, it would have to meet case law standards established by the U.S. Supreme Court. In short, he said, the sign would have to be found to have a predominant appeal to a prurient interest in sex when applying community standards, depict sexual conduct in a patently offensive manner and lack any cultural value.

Claire Ebel, executive director of American Civil Liberties Union in New Hampshire, said state statute governing obscene material mirrors federal case law.

The state reference to community standards applies to the county where the supposed obscene material is found, Ebel said. "Prurient interest" effectively means causing sexual arousal, she said.

A silhouette of a scantily-clad woman does not come close to being considered obscene under either state statute or the obscenity decisions by the U.S. Supreme Court, she said.

If you can go to a store anywhere in the county and find material that is more suggestive than this sign, then the argument that it violates community standards fails, Ebel said.

She recalled a case in 1988 when Hampton police confiscated Captain Condom T-shirts from a store. Police claimed the shirts were obscene.

The prosecutor made the wise decision not go forward with the case, she said, and police had to return shirts and drop charges against the store owner.

In Windham, the Planning Board unanimously approved the XXXPosed sign in February. After its installation in April, it drew numerous complaints from passers-by. Seven or eight people called the town Planning Department and complained about the sign.

The department did not release the names of those who complained, but several residents who live by the sign and pass by it regularly said they found it too racy and inappropriate for children to see.

Post realizes nothing can be done about the current sign, but wants to see if local regulations can be adjusted in case a proposal similar to the one at 53 Rockingham Road crops up in the future.

"I think we can try to do better," Post said.

She has asked for a workshop on the topic and the Windham Planning Board will schedule one, although no date has been set.

Town Administrator Dave Sullivan said any change to the ordinance would have to be approved by a Town Meeting vote.

There are two ways to bring a proposal to a vote. One way is through a citizens petition, which must be signed by 25 local registered voters. The other way is for the Planning Board to propose the ordinance change.

Meanwhile, a Windham Planning Department inspection of the Rockingham Road sign found it to be set too close to the road. The owner recently moved it back an acceptable distance from the road.

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