Details continue to emerge from last week's surprise arrest of a Nashville Scene employee in connection with adult ads he sold for this alternative weekly, among them that police used undercover officers and confidential informants to record phone calls with not just one, but several, Scene employees.
The roots of 29-year-old Nels Noseworthy's unlikely arrest for knowingly placing ads connected to prostitution began in the late 1990s, when Metro began cracking down on the many seedy fronts for prostitution that flourished throughout the fringes of downtown. At first, the city struggled to find some of these massage parlors and tanning salons in violation of the law. So early in Mayor Bill Purcell's first term, the city took an innovative approach. Rather than try to beat these businesses in court, Metro filed public nuisance suits against the property owners that housed adult establishments and obtained temporary injunctions preventing the businesses from operating. At that point, the property owners could choose to fight the lawsuits on their merits and forego rent in the meantime, or settle the suits and find more respectable tenants. Typically, they chose the second option.
But it wasn't until May of last year that police cast a broader net that included the Scene. Former Metro Police Chief Emmett Turner, who left the department in March of 2003, says that there was no such investigation under his watch, even though many of the adult ads published in the Scene provoked suspicion. "Our focus was trying to target violent crime," he says. "We never got around to investigating the Scene."
But just weeks after he left, the police department did investigate the newspaper, culminating in the arrest of Noseworthy, a well-liked Scene employee who sells adult ads when he's not juggling the multiple duties of office assistant and receptionist. On Thursday, two Metro Police officers arrived at the paper's Eighth Avenue offices and led Noseworthy away in handcuffs. The Scene later hired an attorney for him and made his bail. In light of Noseworthy's arrest, incoming publisher Chris Ferrell has suspended the personal adult services section of classified advertisements pending review of the newspaper's procedures. While few people expect this case ever to go to trial, if local authorities wanted to send a message to the Scene, they succeeded.
In May 2003, police were involved in a larger investigation of prostitution when they began to look at how the world's oldest profession reaches new clients. For the city's vice squad, the Nashville Scene was ground zero. Since its birth in 1989, the alt-weekly has published dozens of overtly sexual ads each week in its classified section from some of the same adult businesses that Metro has closed up. Even as the Scene's adult ad space seemed to be shrinking, the city's vice squad began its investigation of the paper and its employees. With a name straight out of a Charles Dickens novel, Noseworthy has been described by the police department and other media as an advertising "executive," but he actually spends only a fraction of his time dealing with adult adsfor which he receives a small commission.
Metro Police say that Noseworthy arranged ads that he knew were intended to solicit business for prostitution. At press time, most of the indictment against Noseworthy was sealed, but police say they built their case through direct phone conversations between Noseworthy and undercover officers posing as advertisers. Based in part on this evidence, a grand jury indicted Noseworthy on six counts of promoting prostitution. If convicted, he faces up to 12 years in jail.
"Nobody likes to pick a fight with someone who buys ink by the barrel," says Deputy Police Chief Steve Anderson, who has monitored the investigation into the alt-weekly for months. "But this was something we had to take care of."
Still, the intensity of the investigation into the Scene is chilling. Anderson says that undercover officers placed about 15 calls to Noseworthy. They also made other recorded calls to other Scene employees and, though it's not clear exactly who else was targeted, Anderson says that, "at this time no information criminally implicates them."
In addition, one well-placed source tells the Scene that the department's vice squad had confidential informants place calls to Noseworthy. These informants were not police officers, but people who ran adult businesses and might have worked with Noseworthy before. The source says that in these phone conversations, Noseworthy didn't say anything incriminating. Anderson wouldn't comment about this facet of the investigation, but if police officers asked criminal defendants to aid their efforts, it would illustrate an unusual zeal on their part to trap a Scene employee. Typically, authorities use confidential informants to rat out drug dealers and mobsters, not bespectacled part-time ad salesmen.
For better or for worse, the city's efforts to investigate a newspaper for the content of its adult ads seem to be unprecedented. (Anderson says that the police are continuing to monitor the adult advertisements in other publications, including the local Yellow Pages.) When contacted, officials at media think tanks, including the Poynter Institute and the First Amendment Center, could not recall any case like this. Alan Johnson, the well-respected attorney for The Tennessean, also wasn't able to cite any precedent for this sort of action.
"I'm not saying they can't do what they're doing," he says. "But it really doesn't smell right at all."
Richard Karpel, executive director of the Association of Alternative Newsweeklies, to which the Scene belongs, says that he's never heard of such a case. "A lot of this stuff relates to community standards," he says. "I don't think people in New York or San Francisco have to worry about their classified reps being arrested."
Attorney John Herbison, who has successfully defended adult businesses against Metro for years, says the city's prosecution of Noseworthy is a case of "In terrorem." That's when the authorities pursue a case "not for the purpose of obtaining a conviction but for the chilling effect it has for people who might otherwise be tempted to participate in this or a similar activity." Herbison speculates that the city knows that it can't win a conviction against Noseworthy, in part because the statute that spells out what it means to promote prostitution can't possibly extend to placing adult ads in a newspaper.
"I can not see how that statute is violated," he says.
Assistant District Attorney Jon Seaborg, who worked on this case, says that Herbison simply doesn't know the facts. And at this point, anyway, only a few people know exactly what undercover officers have in the way of evidence. But Herbison says that even if, in a worst-case scenario, he agreed to place an ad for someone he had every reason to believe was soliciting patrons for prostitutes, a jury would have to take a very creative interpretation of the statute to convict him.
If the city's law-and-order wing seems overzealous in its efforts, the alt-weekly isn't exactly willing to offer a compelling defenseat least not publicly. Both outgoing publisher Albie Del Favero and his successor, Chris Ferrell, who officially takes over Jan. 1, say that the Scene requires adult advertisers to provide copies of their business licenses. But that's hardly the imprimatur of legitimacy, as many of the ads the paper runs hint at prostitution. On the day two officers arrested Noseworthy, the new issue of the Scene ran one adult ad that read "Barely Legal Beach Bunnies," while another ad, for a woman who calls herself "Ashley," said to "come shake my tree and we'll rattle some jingle bells." When asked to see copies of business licenses for such ads, Del Favero and Ferrell declined to produce them. The Tennessean was similarly denied in its attempts to examine the Scene's copies of business licenses.
In addition, Anderson says that undercover officers placed ads in the Scene without having to show licenses. Again, Ferrell and Del Favero declined comment on whether the newspaper's policy was breached. Finally, while both Ferrell and Del Favero claim that the Scene has a written policy on how its employees create and place adult ads, neither would provide it.
Interestingly, in the days following Noseworthy's arrest, The Tennessean's sports section was conspicuously devoid of many of the adult ads it usually runs. Publisher Leslie Giallombardo says that the timing was just a coincidence and, in fact, the adult ads have since returned. Giallombardo says that even in light of recent events, the paper is not re-evaluating its adult ad policy, which, curiously, is nearly identical to the city's alt-weekly: adult advertisers must provide copies of their business licenses. Of course, the adult ads that appear in The Tennessean are tamer than those found in the back pages of the Scene. Why?
"I would say you're not following your own policy," she says.
In an irony that has hardly gone unnoticed, the Scene's new publisher was the one who basically prompted the city to crack down on adult-oriented businesses. In 1997, Chris Ferrell, then an at-large member of the Metro Council, drafted legislation that would have created a strict licensing procedure for adult businesses, not long after two women were stabbed at a Church Street tanning salon for men. (Liz Garrigan, now the Scene's editor, wrote a story characterizing this massage parlor as a "sleazy business," even as the paper ran ads for exactly those sorts of services.) Ultimately, the city failed to legislate them out of business and opted for its current strategy of targeting property owners under public nuisance statutes. Now as publisher of the Scene, Ferrell is dealing with the fallout of a campaign that he essentially started.
In the wake of Noseworthy's arrest, Ferrell says that the paper won't be running personal adult services ads until he thoroughly reviews the newspaper's policies. (This doesn't include strip clubs and phone sex lines.) About whether his new job responsibilities as publisher conflict with his own moral values, Ferrell struggles to reconcile the two. "There's a certain element of moral ambiguity in any job with great responsibility," he says. "To me, the voice the Scene has in the community is important enough that I was willing to take the job, thinking I would be able to develop advertising policies fitting with what I think is right."
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