Guest post by Angelina Spencer-Crisp
Note: Scott Bergthold is the same attorney who worked with both Ohio & Missouri to pass the “Community Defense Act.” This law was used by the now-defunct Columbus vice squad to arrest Stormy Daniels. According to the Columbus, OH city attorney, the CDA will no longer be enforced there due to “Constitutional concerns.”
A federal court reversed a lower court decision against an Atlanta-based adult bookstore, reigniting a constitutional challenge to the City of Atlanta’s adult entertainment ordinance.
The 11th Circuit U.S. Court of Appeals issued its ruling last week after lawyers argued their respective sides before a three-judge panel.
In the wake of the ruling, the city dropped attorney Scott Bergthold from the case.
Bergthold’s lengthy anti-LGBTQ record was explored in detail in a story first reported by Project Q Atlanta in April, along with hundreds of thousands of dollars in “educational grants” he received from alleged hate-groups with charitable status.
The city made the decision to drop Bergthold earlier this week, according to a spokesperson for Atlanta Mayor Keisha Lance Bottoms.
“The city is currently evaluating all legal options,” Press Secretary Michael Smith told a local media outlet. “The city is no longer engaged with Mr. Bergthold.”
The U.S. District Court for the Northern District of Georgia ruled in January 2018 that Tokyo Valentino, an LGBTQ themed “adult superstore”, had been in violation of city ordinances since it opened in 1998. The court also issued an injunction prohibiting the store from operating an adult entertainment business.
The 11th Circuit panel reversed the district court’s injunction on Friday and ruled Tokyo Valentino’s claims that the city violated its Fourth Amendment rights could continue. It’s owner and founder, Michael Morrison, hopes to settle with the city for attorney’s fees.
“Because the district court relied upon the definition of ‘adult business’ and its various sub-definitions to issue the injunction, the injunction cannot lie,” according to the ruling.
The 11th Circuit panel also scolded the city for arguing that a small note saying “not approved” on a building permit issued in 1997 was proper notice to Tokyo Valentino that it would be cited years later over the presence of the video booths, in violation of a 1996 ordinance.
“The city fails to demonstrate that [Tokyo Valentino] knew about the ‘not approved’ change in the bottom corner of the permit,” the ruling said.
“Ultimately, the city attempts to find an elephant in a mousehole. Statements written in tiny font in a corner or in unclear handwriting in a building permit, about which there are conflicting explanations and that were not discussed in the previous litigation, cannot serve to preclude facially valid constitutional claims,” the ruling added.
In 1998, a Fulton County Superior Court judge ruled against the city in its move to deny a permit for the business, and business continued as usual until 2014, when the store, previously named, “Inserection” was remodeled and rebranded as ‘Tokyo Valentino’, which led the city to claim the store’s video booths needed to be removed as it was violating city ordinance.
In 2015, Tokyo Valentino sued the city claiming that the adult entertainment ordinance violated it’s Fourth Amendment Rights. A counter-suit ensued and each party moved for summary judgment.
In 2018, district court denied the store’s constitutional claims and issued the injunction in 2018. Tokyo Valentino’s attorneys then appealed the decision to the 11th Circuit.
Bergthold’s ‘history of working against LGBTQ & other Causes’
Scott Bergthold, a Chatanooga-based attorney, and the now-former lawyer for the City of Atlanta in the Tokyo Valentino case, has spent a career trying to shut down sexually-oriented businesses across the country under legislation once dubbed, “The Community Defense Act” but renamed recently as, “Anti-Human Trafficking” legislation, mostly at the state level.
Bergthold was also heavily involved in the Ohio-based Citizens for Community Values, where he worked with then-President Phil Burress, to launch the Defense of Marriage Act in Ohio during the 2004 election.
Burress credited the DOMA for getting Ohio voters out in droves to shut down “gay marriage”. When opponents accused Diebold of rigging Ohio voting machines, and it was discovered that then Sec. of State Kenneth Blackwell (Who now works as a research fellow for The Family Research Council (which was also listed as a hate group’ by the Southern Poverty Law Center) under Tony Perkins) held stock in the Diebold, and vowed a Bush win in an email, it was also discovered that some of the Ohio votes were being counted by a machine in Chattanooga, TN that allegedly shared the same address as Mr. Bergthold’s law practice.
The man sent to test the Ohio voting machines, Michael Conell, died in a mysterious plane crash the day before he was to testify for a second time against those accused of rigging the machines. His wife claims his blackberry and other paperwork was confiscated. Local police allege they were barred from investigating.
Bergthold’s legal record and his longtime affiliation with anti-LGBTQ groups led elected officials in other cities to remove him or consider removal from their payroll. And a Dallas, Texas, city council member has publicly objected to the attorney’s “history of working against LGBTQ causes,” with an alleged recommendation that he no longer be retained for city business.
Consequently, Bergthold is well-known among some of the staunchest anti-LGBTQ groups and separate alleged “hate groups”.
For example, the Arizona-based, Alliance Defending Freedom (ADF), which changed its name from the Alliance Defense Fund, gave over $213,000 in grants to Bergthold for “education” between 2010 and 2016, according to charitable tax records.
Old tax data also shows that one AZ firm affiliated with Bergthold ran $33 million through its coffers in a year with a large sum going to Bergthold in the form of a “grant”. (Some types of grants are considered ‘tax-free’ for recipients under IRS code).
The City of Atlanta paid Bergthold’s law firm more than a quarter of a million dollars between November 2016 and December 2018, according to a review of invoices by Georgia-based Project Q. In metro Atlanta, Bergthold has also represented the cities of Doraville and Brookhaven in cases against sexually-oriented businesses.
Additionally, Bergthold was once sanctioned in Sioux Falls, IA. In Ohio, he once told a judiciary committee considering Community Defense Act passage, that he’d successfully passed the very same legislation in six states.
A fact-check proved otherwise, and he was called out by Ohio media outlets in 2007 as being less than honest with the committee. The Community Defense Act passed anyway, being heavily funded by the CCV, and it was the same law cited to arrest Stormy Daniels while she performed in a Columbus, Ohio club. Attorneys in Columbus stated to media after her arrest that they will no longer enforce the CDA, believing it unconstitutional.