November 04, 2003

(Updated) Nude Dancing, Live Sex Acts, And Free Expression At The Oregon Supreme Court

Note: This post has been updated. Any and all updates appear at the end of the original post.

I was going to get to this when the stories first began appearing, but my procrastination paid off because now there are three articles to bring together, including one about the actual arguments before the court.

Late last week, OPB ran a story on a pair of lawsuits against limitations on live sex shows and nude dancing.

Here are the facts of the first case: In 1998, 25-year-old Charles Ciancanelli opened a private lingerie shop called Angels in Roseberg.
Customers paid to see dancers in sexy outfits or with no clothes at all. But Roseberg Police Detective Pat Moore found Angel's employees were do more than dancing.
He busted Ciancianelli for violating a 1973 law that prohibits live sex shows.
Apart from the debate over live sex shows, strip club owners are far more worried about a city ordinance in Nyssa, a town of 3000 on the Oregon-Idaho border.
It requires a four-foot distance between strippers and customers.
[Claude DaCourci, head of ACE, Association of Club Executives] says smaller clubs don't have the room for such a buffer and might have to close. But more importantly, he says the rule would affect lap dances.

On Sunday, the Statesman Journal also covered the impending arguments and their potential implications:

Oregon Attorney General Hardy Myers, through Justice Department lawyers, suggested that the court should test individual rights such as free expression against government regulation for community needs.
"Some comparison of the private and public interests at stake -- balancing, in the common modern idiom -- is an inescapable part of the state's test," wrote Assistant Attorney General Robert Atkinson in defense of a law barring sexual conduct in a public show.
"But that is what American courts -- including this one -- historically have done."
Some lawyers say that if the court reconsiders free expression along the line Myers suggests, it could open attempts by government to regulate more than just the sex industry.

This article also quotes a University of Oregon law professor as saying, "It happens that the adult-entertainment industry is on the point here because it is unpopular." This is an almost mind-boggling thing to assert, given how much money that industry rakes in, which it could hardly do if it were unpopular.

So what about the actual arguments before the court? Here is starts to become really interesting, as seen in today's Oregonian, as Assistant Attorney General Robert Atkinson makes the above-mentioned plea for balance:

Justice W. Michael Gillette said the state already made such a suggestion several years ago in a child pornography case.
"Didn't we say we aren't going to do that?" Gillette asked.
"Yes," Atkinson responded.
"Why do you keep coming back at this?" Gillette said.
Atkinson replied that the court had it wrong, that when the framers of the Oregon Constitution wrote protections for free speech, they never intended to allow something like live sex shows.
Even as Gillette appeared to grow angry, Atkinson stuck to his argument that the court incorrectly understood the original intent of the framers. Gillette warned him against using the term "original intent," a legal philosophy that is generally embraced by ultra-conservative scholars and judges.
"Must you inflict it on us?" Gillette asked.
"I think the court has inflicted it on the Oregon Constitution," Atkinson responded defiantly, admitting that he knew the term would get a rise out of the court.
"I do it to be deliberately provocative," he said.
"Well, you're succeeding," Gillette fired back.

These sorts of exchanges have always been my favorite part of what few court hearings on contentious issues I've had the opportunity to attend. But someone more familiar with Gillette than I will have to make the call as to whether this sort of banter happens to be indicative of his position, or merely indicative of putting an attorney through his paces (which has been known to happen).

Meanwhile, in terms of the prohibition of live sex acts, an attorney representing the club in question argued (according to the paper), "The law seeks to punish people for a performance of things that are not themselves against the law." And on the matter of performer/patron distance restrictions for nude dancing, an attorney for the club in question in that case argued that the restriction interferes with "the delivery of an erotic message."

For what it's worth, I do believe that both cases should be decided in favor of protecting both activities, although prohibiting live sex acts, while possibly abridging freedom of expression, just seems a rather silly thing to do, since (as argued) sex itself is not a crime.

There's more on all of this in today's Statesman Journal as well.

Disclaimer for the sake of context, and lest anyone think I have some sort of personal stake in the matter: No, I have never witnessed a live sex act, and I have been to a strip club exactly once, primarily because I had never been before, and a friend (female, incidentally) insisted I had to go at least once in my life.

November 04, 2003


There's some OPB coverage on the arguments before the court as well, which includes a bit of Gillette challenging an attorney to explain why it matters how far away a nude dancer happens to be.

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