KY Supreme Court strikes county “no touch” provision on overbreadth grounds
Blue Movies, Inc., et. al. v. Louisville/Jefferson City Metro Gov’t, 2007-SC-000812-DG (Ky. April 22, 2010)
Supreme Court of Kentucky upholds most of Louisville/Jefferson County Metro Government SOB ordinance, but strikes overbroad “no-touch” provision.
The Supreme Court of Kentucky upheld most of the provisions of the Louisville/Jefferson County Metro Government’s 2004 sexually oriented business ordinance, but ruled that the “no touch” provision is unconstitutionally overbroad under the fourth prong of the test set out in United States v. O’Brien, 391 U.S. 367 (1968):
[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
The “no touch” provision states: “It shall be a violation of this chapter for any employee, who regularly appears semi-nude in an adult entertainment establishment, to knowingly or intentionally touch a customer or the clothing of a customer.” According to the court, this language:
. . . would be valid if it applied to employees only while they were performing or while still in a state of nudity . . . [but it] goes overboard in forbidding lawful, nonsexual, consensual touching . . . Although Metro has a valid interest in trying to stifle these negative secondary effects, we believe that prohibiting all touching, including benign, nonsexual touching, is substantially broader than necessary to achieve Metro’s interest. The nonsexual touching that is common in our culture as a means of social greeting or as an expression of platonic affection does not always lead to sexual behavior, and we will not cynically presume otherwise. An ordinance could easily be more narrowly tailored to prohibit sexual touching, as in the ban on touching during a performance or while in a state of nudity . . .
Upheld portions of the ordinance include: “the licensing scheme (owner/officer disclosure, licensing fees, criminal disability provision); the anti-nudity provisions; restrictions on the hours of operation; no direct tipping provision; prohibition on sales of alcohol; buffer zones between patrons and dancers.”