Volume 2006, Issue 7

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

ITEMS OF SPECIAL INTEREST

Exotic Dancers Face Real Dangers
AP on Canton Repository, Megan Scott, 7.7.2006
Research shows strippers make up a disproportionate share of rape victims, says Mary Anne Layden, a psychotherapist who counsels strippers, prostitutes and sex offenders. She says when a stripper allows a man to invade her visually, she inadvertently sends the message that it is OK to do physically . . . protection is usually better in a strip club than in a private home, where there are no rules and no bouncers to clobber a guy if he touches a stripper on the pole. But in the club, women also face the prospect of being abused by people who work there. Of the 18 strippers Holsopple talked to for her survey, two said club owners “forced intercourse” on them as a condition of employment. “The whole environment is toxic,” says Layden, who speaks out against strip clubs.

Court Forbids Cutting Nudity, Profanity from Hollywood Films
Lifesite, 7.7.2006
Clean Flicks of Colorado, LLC v. Soderbergh et. al., No. 02cv01662RPM (D. Colo. July 6, 2006)

Beard v. Banks, No. 04-1739 (U.S. June 28, 2006)
The U.S. Supreme Court holds that a Pennsylvania state prison policy can restrict photos and reading materials without violating the 1st Amendment.

CASES

181 South, Inc. v. Fischer, No. 05-1882P(3rd Cir. July 18, 2006)
Liquor Licensing regulation prohibiting lewdness or immoral activity in erotic dancing establishment is not unconstitutional.

Stadium Book & Video, Inc. v. Miami-Dade County, 2006 WL 2374740 (S.D.Fla. Jul 31, 2006) (NO. 04-20537-CIV JORDAN, 04-21156 CIV JORDAN, 04-20553-CIV JORDAN)
Regulation requiring open doorways for video booths in adult bookstores does not violate free speech or due process protections.

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3rd Circuit: Erotic Dancing in Bars Not Protected Speech
Legal Intelligencer on Law.com, Shannon P. Duffey, 7.19.2006
181 South, Inc. v. Fischer, No. 05-1882P(3rd Cir. July 18, 2006)

Liquor Licensing regulation prohibiting lewdness or immoral activity in erotic dancing establishment is not unconstitutional.

After being cited for violations and fined, 181 South, an erotic dancing establishment, filed suit challenging a regulation of the NJ Division of Alcholic Beverage Control that prohibits any licensee from permitting “lewdness or immoral activity” on its premises. The district court granted summary judgment in favor of the state. On appeal, 181 South raised several points of alleged error including its claim that the District court erred in rejecting 1) its First Amendment facial challenge to the regulation; 2) its claim that the regulation is unconstitutionally overbroad; and 3) its claim that the regulation is unconstitutionally vague.

With regard to the First Amendment facial challenge, the court observed that the U.S. Supreme Court had upheld similar regulations in California v. LaRue, 409 U.S. 109 (1972) (upholding regulation pursuant to the state’s power under the Twenty-First Amendment which repealed Prohibition). LaRue’s holding remains good law, but its reliance on the Twenty-First Amendment has been displaced by 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 4848 (1996)(holding that similar regulations could be upheld on grounds that the State has inherent police power to restrict “bacchanalian revelries”). Under 44 Liquormart, regulations are analyzed as time, place manner restrictions under an intermediate scrutiny standard as set forth in Young v. Am. Mini Theatres, Inc., 427 U.S. 50 (1976) and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). Under these tests, the court of appeals held that regulation in question survives the First Amendment facial challenge.

The New Jersey Supreme court had construed the regulation in question as prohibiting entertainment where “the predominant object and natural effect upon the observers-patrons of one portion of the performance [is] erotic excitation.” Citing Erznoznik v. Jacksonville, 422 U.S. 205 (1975), the court of appeals held that this limiting construction by the State Supreme Court causes 181 South’s overbreadth claim to fail.

The court of appeals also rejected 181 South’s vagueness claim on grounds that “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Citing Vill. Of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982).

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Stadium Book & Video, Inc. v. Miami-Dade County, 2006 WL 2374740 (S.D.Fla. Jul 31, 2006) (NO. 04-20537-CIV JORDAN, 04-21156 CIV JORDAN, 04-20553-CIV JORDAN)

Regulation requiring open doorways for video booths in adult bookstores does not violate free speech or due process protections.

Three adult bookstores (hereinafter “Stadium”) filed suit challenging a provision in the Miami-Dade County Ordinance 96-13 which requires all video booths in adult bookstores to have a permanent open entranceway or doorway. The ordinance provides detailed specifications for the doorway. Stadium raised numerous challenges to the Ordinance including but not limited to alleged First Amendment free speech violations, free speech violations under the Florida Constitution, and substantive due process violations under the Fifth and Fourteenth Amendments of the U.S. Constitution. The lengthy opinion contains extensive discussion of the evidence presented in the case and is a useful resource for cities in other jurisdictions.

The court analyzed the First Amendment claim as a time, place, manner regulation subject to intermediate scrutiny pursuant to City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). In order to determine whether an ordinance satisfies Renton:

A reviewing court must perform a three-part analysis . . . first, the court must determine whether ordinance constitutes an invalid total ban or merely a time, place, and manner regulation; second, if the ordinance is determined to be a time, place, and manner regulation the court must decide whether the ordinance should be subject to strict or intermediate scrutiny; and third, if the ordinance is held to be subject to intermediate scrutiny, the court must determine whether it is designed to serve a substantial government interest and allows for reasonable channels of communication.

After applying Renton and weighting the evidence pursuant to City of Los Angeles v. Alameda Books, Inc., 122 S.Ct. 1728 (2002), the district court concluded that the regulation withstood First Amendment scrutiny. Alameda Books clarified the evidentiary requirement to determine whether the regulation in question satisfies Renton’s substantial government interest prong. Under Alameda, a locality may rely on evidence it “reasonably believes to be relevant’ to the problem of secondary effects. The locality may rely on evidence or studies performed in other jurisdictions or even anecdotal evidence. If the locality meets its initial burden of proof, the challenger then has opportunity to cast doubt on the evidence presented. If the challenge successfully cases doubt on the initial evidence produced the burden then shifts back to the locality to present evidence renewing support for the regulation in question.

Since “[t]he scope of protection accorded to freedom of expression in Florida under article I, section 4 is the same as is required under the First Amendment,” the court also rejected Stadium’s free speech claims under the Florida constitution.

Stadium also claimed that the regulation in question violates the due process requirements of the Fifth and Fourteenth Amendments, because the regulation “bears no reasonable relationship to the County’s lawful exercise of its police power.” Stadium cited several cases for this proposition including Lawrence v. Texas, 539 U.S. 558 (2003)(striking down a Texas sodomy law applied to private homosexual consensual conduct). The court rejected these claims observing that there was significant evidence of potential secondary effects in the record to support the regulation. Citing Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004), the court distinguished Lawrence, because the conduct in the instant case occurred in a public place.

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