BusinessTN

It sounds like the beginning of an off-color joke: “A porn star and a lawyer for the religious right walk into a municipal city council chamber.

But in fact it’s a scenario with a Tennessee connection that actually played out recently in Scottsdale, Ariz.

Last month, Jenna Jameson, 31, star of more than 50 adult films that have sold millions of copies around the world, issued a warning to her hometown Scottsdale Mayor Mary Manross and the Scottsdale City Council. In a public statement provided to wire news services around the globe, Jameson expressed her opinion that Manross and the Council had been “misled” by Chattanooga-based First Amendment attorney Scott Bergthold, a man Jameson went on to describe as a “hired gun for the religious right.”

So how exactly did a member of Tennessee’s legal fraternity end up in Jameson’s cross hairs?

In recent years, Jameson has successfully parlayed her legendary status as an on camera sex star into the role of highly successful business tycoon and executive through the establishment of a sort of porn conglomerate. Product offerings range from various paid pornography Web sites to branded strip clubs, cosmetics, apparel, bejeweled sex toys—even a New York Times best-selling book and a burgeoning television career. Then last year, Jameson became part owner of one of just two strip clubs in her hometown of Scottsdale, a place called Babe’s Cabaret.

Meanwhile, last August, Scottsdale city officials hired Bergthold, a nationally active lawyer and purported expert in drafting and defending strict municipal adult-business regulations. His charge? To advise city leaders on how it might increase regulation of the city’s two strip clubs, including Babe’s.

On Dec. 12, 2005, in a unanimous vote just days following Jameson’s public comments, the Scottsdale City Council took a financial bite out of Jameson’s cabaret business by passing a new city ordinance requiring strippers to keep four feet between themselves and club patrons. The ordinance also outlawed all nude dancing. The Council had considered passing a ban on the sale and consumption of alcohol in the club but refrained from doing so on the basis that such a regulation would indeed put Babe’s out of business.

Her ability to conduct a profitable business severely damaged, Jameson issued yet another public statement contending Bergthold was hired simply to “ram through an unconstitutional ordinance that would shut down a business that has been operating peacefully and legally for over 20 years in the same location.” Mayor Manross answered that claim when she stated publicly at the time of the vote that the new ordinance was not designed in any way to eradicate Scottsdale’s two topless bars. “We’re here just to regulate a business,” Manross was quoted by local press as stating during the public meeting. “That’s what responsible communities do.”

Contacted by Business Tennessee, Bergthold politely declined to be interviewed about the Scottsdale case. “Unless a client asks me specifically to answer a media request, I don’t,” Bergthold said. “It’s just my policy.”

Jameson did not return Business Tennessee’s calls.

Morality’s Point Man
The law office of Scott D. Bergthold on McCutcheon Road in Chattanooga, bills itself as the nation’s only law firm focused exclusively on the drafting and defense of municipal adult business regulations. Regulation of “adult entertainment” or “sexually oriented businesses” is a niche of First Amendment law and Bergthold is rapidly emerging as the specialty’s go-to-man.

A frequent lecturer for state municipal leagues and the International Municipal Lawyers Association (IMLA), Bergthold has written articles for ABA State and Local Law News, Land Use Law & Zoning Digest, and Municipal Lawyer magazine. He is co-author of Protecting Freedom of Speech and Expression: The First Amendment and Land Use Law (ABA Publishing, 2001). Admitted to practice before the Supreme Court of the United States, as well as the Supreme Court of Arizona and of Tennessee, various U.S. Courts of Appeals and a number of federal district courts, Bergthold is routinely granted special admission to represent municipal clients in state and federal litigation around the country. Bergthold was recently the principal brief author in City of Littleton v. Z.J. Gifts D-4, LLC, in which the U.S. Supreme Court ruled 9-to-0 in favor of Littleton’s adult entertainment licensing ordinance.

For Bergthold, business is thriving. After seemingly decades of agnosticism (or was it just healthy respect for the First Amendment?) on the part of city and county governments across the nation, those entities are now increasingly employing legal tactics to hamstring or shut down established adult businesses. They seek to do so generally either through developing an initial ordinance, updating outdated regulations, or defending zoning or licensing restrictions in state or federal court. Municipal legal teams are seldom experts in these areas. Enter Bergthold, who helps cities develop their approach. A small sampling of clients includes Cincinnati, Ohio, San Diego, Calif., San Antonio, Texas, and Clark County, Nev. (Las Vegas).

At present, the level of governmental activity in Tennessee is staggering. The Memphis City Council recently placed a moratorium on all new permits allowing new clubs to open, a move intended to give the city time to reconsider the city’s current regulations on strip club locations. Metro Nashville government is currently embroiled in a fight with a local strip club over the city’s new adult-entertainment law, which among other things requires strippers to remain at a distance of three feet from customers at all times. Metro also recently began enforcing new laws requiring background checks and licensure of exotic dancers and club owners. And the Knoxville City Council in December passed a revised definition of what constitutes an adult business and placed a 90-day moratorium on all new businesses. It follows council action last May enhancing regulation of the licensing, hours of operation, location and practices of adult entertainment businesses. Knox County passed similar new regulations in August.

Both the City of Knoxville and Knox County are clients of Bergthold.

Statutes and Ill-Repute
So how exactly does Bergthold get new regulation on the books? Bergthold’s primary weapon is arguing that cities do not need evidence that clubs are causing problems to tighten ordinances. All that is needed, Bergthold contends, is evidence the clubs have brought crime such as prostitution to the community. And on that ledger, Bergthold points out that most crime statistics are unreliable as they relate to strip clubs because they often do not create a victim. “People do not call the police if they’re in a back room (with a stripper),” Bergthold was quoted as stating in public testimony in Scottsdale.

For her part, Jameson says in press materials that Bergthold’s advice is in direct conflict with Arizona State law and that she is certain the courts will reject his “narrow idea” of free speech rights.

“Erotic dancing has been declared a legal form of artistic expression in court after court, including the U.S. Supreme Court,” Jameson adds. “Whether you want to watch erotic dances or not is entirely up to you, but no one has the right to impose their own narrow moralism on the rest of us, and that is exactly what Mr. Bergthold is advising Mayor Manross to do.”

According to Jameson, Mayor Manross’ crusade against local clubs is simply “a politically motivated campaign” aimed at seizing on the porn star’s fame. And in fact the New Times recently reported that Scottsdale’s two strip clubs were each quietly going about their business without complaints until the high-profile Jameson made her investment in Babe’s. The paper quoted Todd Borowsky, owner of the Skin Cabaret, Scottsdale’s other strip club, stating that after Jameson’s interest in Babe’s was announced, cops began dropping by both clubs. Borowsky was suddenly faced with seven criminal citations for infractions like not submitting a floor plan and not maintaining an employee log.

“Before Babe’s sold, we had no problems whatsoever,” Borowsky told the New Times. “Now all of a sudden there are 15 articles in the newspaper, and council members are making comments—this is 100% connected.”

Jameson now says she’ll launch a referendum effort to overturn the newly passed ordinance, stating she has already instructed her lawyers to begin action to “recall this absurd ordinance, which was drafted by a hired gun from Tennessee […] who has made it his business to take away freedoms of expression and choice for consenting adults. I understand that this religious zealot gets paid to create situations like this, ones that will require lawsuits, and then he personally benefits by consulting or representing the city in resulting legal actions.”

Jameson also plans to create a new Web site (jennafightsforfreedom.com) as a clearinghouse for information about her referendum campaign.

The DD Mogul
Porn is big business. And Jameson is a serious businessperson at the head of a large organization that has made her very wealthy. Jameson’s book How to Make Love Like a Porn Star: A Cautionary Tale, has been a New York Times and Amazon bestseller. She controls her own film production company and is the chairwoman of ClubJenna, Inc., a product licensing and Internet management firm that handles the Web activities for more than a dozen top adult stars. According to a recent Forbes article, ClubJenna will hit revenues of $30 million this year, up 30%. She also operates ClubJennaMall.com, a popular online retail store, and has a free non-explicit Web site, justjennajameson.com. Jameson still makes movies, as well. According to Forbes, Vivid, the world’s largest adult film company, distributes and markets ClubJenna films for a 30% cut of sales. Jameson’s movies, Forbes reports, comprise one-third of Vivid’s total revenue—the most profitable part of the business, “earning net margins well above 50%.”

According to Forbes, Jameson is also in the midst of a six-year contract with sex-toy maker Doc Johnson, “getting a flat licensing fee plus a cut of sales” for the products she has a hand in creating.

Also prominent in the cell phone market, Jameson’s Y-Tell wireless company sells Jenna “moan tones,” Forbes reports, as well as pictures, chat services and games in equal partnerships with more than a dozen carriers around the world.

Jameson and her husband have recently pitched a reality series about their lives to the A&E cable television network. A camera crew is scheduled to begin following the pair this summer. As the referendum campaign push advances, viewers might anticipate the appearance of Bergthold in footage.

No matter how the current Scottsdale confrontation plays out, neither Jameson nor Bergthold will suffer. Jameson’s wealth is secure and one strip club does not an empire tumble. Bergthold, clearly has his own financial and business empire well under construction, as well. Increasingly in demand for his expertise waging war on behalf of elected mayors and their legal teams against the sex industry within their jurisdictions, Bergthold’s budding law practice is likely about to shift into overdrive. The national exposure deriving from his showdown with Jameson will do nothing if not increase its size and scope.