A New Case Involving The Good, the Bad,
and the Ugly:
Schultz v. City of Cumberland
By J. D. Obenberger, Attorney at Law
© MM J. D. Obenberger
Lately, some of the most interesting cases involving the First Amendment and free expression in adult entertainment have come out of the Seventh Circuit Court of Appeals right here in Chicago, a federal court that hears appeals from the US District trial courts in Wisconsin, Illinois, and Indiana. The only possible appeal from a decision of the Seventh Circuit is to the United States Supreme Court, and because The Supremes don’t take very many cases each year, what the Seventh Circuit has to say is pretty much The Law of the Land in our three States.
A few months ago, I wrote a column about the Seventh Circuit’s decision involving an adult bookstore in a tiny town in northern Wisconsin, DiMa v. Town of Hallie which upheld a town law closing the store down between the hours of 2:00 and 6:00 a.m. This month I’ll be telling you about its newest case on the subject, Schultz doing business as Island Bar v. City of Cumberland, Nos. 98-4126 and 98-4209, which was decided on September 26, 2000.
Decisions coming out of the Seventh Circuit on this topic are especially interesting because of their honesty. The judges of the Seventh Circuit frankly admit some problems in the justifications which courts use to regulate erotic expression, upholding laws as constitutional which treat it disparately from “high art”, with rights inferior to socially “approved” and ”reputable” expression: The Seventh Circuit Court openly admits problems that other courts try to sweep under the rug of legalesque mumbo-jumbo.
The United States Supreme Court, for example, likes to pretend that this disparity just doesn’t exist. In the recent case of Pap’s A.M. Kandyland v. City of Erie, the Supreme Court majority again threw around expressions like “content-neutral” regulation of time, manner and place of adult expression in explaining why Erie could outlaw the display of areolas in a gentlemen’s club (but could probably not do the same thing on an opera stage).
But, of course there is so such thing as “content-neutrality” when you pick and choose which kind of constitutional protection is afforded to expression based on the nature of the message expressed in a performance.
That is exactly what The United States Supreme Court has been up to surely since its split-decision in Barnes v. Glen Theater in 1991, and perhaps going back to Young v. American Mini-Theaters, a 1976 decision arising out of Coleman Young’s skid row abatement ordinance in Detroit: I suspect that because of a flawed application of its generally positive policy of reinvigorating the concept of federalism in American political life, it has permitted State and local authorities to become arbiters of taste, culture, art, and consequently, the constitutional protection afforded to nudity and adult-content expression in general.
If this dangerous and schizophrenic rule of law ever escapes from the bottle marked “XXX” and extends beyond adult entertainment, it would threaten to destroy the fabric of cultural diversity and pluralism that has been the essence of American liberty. It is precisely to eliminate the possibility that our elected officials will ever arrogate to themselves the role of moral and cultural censors, arbiter of high and low art, determiners of what can be publicly performed, sold, read, and viewed, that we have First Amendment. But that rule of law does exist, its existence is confirmed in Island Bar, and for the moment, the irreconcilable difference between articulated constitutional principles of liberty of expression and its practical application permitting the muzzling of expression is confined to the bottle holding full-strength erotica. Let’s hope it stays there, and in time, is emptied out and discarded as the poison to freedom that it is.
Unlike the laws examined in Barnes and Papp’s, laws
which generally banned all public nudity, and which were upheld against
challenges as they were applied to expression on stage, the law considered
in this Seventh Circuit case, passed by the tiny hamlet of Cumberland,
Wisconsin, directly targeted on-stage performance dancing alone.
The Seventh Circuit honestly says what others fear to say: “The Ordinance is not a content-neutral prohibition on a general class of conduct. . .[I]t targets adult expression.”
And then, this three-judge panel of the Seventh Circuit did, I suspect, exactly what it felt the United States Supreme Court would require it to do: Instead of treating this law like a content-based restriction on speech (which courts are generally required to presume unconstitutional until proven otherwise, by the government showing that the law reflects the narrowest practical regulations designed to serve compelling government interests), it instead remarked that some laws which are not content-neutral, that some laws that are in fact directly addressed to content, can be constitutional if they affect such things as erotic expression, if “alternative channels” of erotic expression are left open. And so, it applied what lawyers call “intermediate tier scrutiny” to the law, giving wide latitude to the Cumberland city council.
There you have it. A frank admission that some expressive performances don’t have to be treated as if they are the exercise of free speech. They can be burdened with oppressive restriction from which other kinds of expression are protected, if they are erotic. Even if they are not obscene. Even if the law is exactly aimed at the message. As long as some erotic message can endure. That’s it.
What did the Seventh Circuit actually determine about the particular law being challenged? The results can fairly be characterized as, “Some good, some bad, and some ugly.” I’ll let you determine which category each of the following falls into:
The court upheld the provision restricting the operation of the club to the hours of 10:00 and midnight, Monday through Saturday, justifying this on the limited police manpower in a city of 2,200 up in the north woods. In DiMa they had upheld a 2:00 a.m. closing for a dirty book store, because liquor establishments had to close at the same hour. So now, erotic gyrations can be limited more restrictively in their time of availability than the popular liquid drug that is the leading killer of young adults at the hands of drunk drivers.
The Court overturned and declared invalid certain provisions that restricted dancers in a sexually-oriented performance from dancing with such sexual gestures as touching their breasts or simulating sex. In essence, it told Cumberland that you can’t have it both ways. If you treat the bar differently because of the sexual overtone and innuendo of the entertainment, you can’t prohibit the moves which create the overtone: To permit this kind of regulation, the Court said, would be to permit the functional prohibition of erotic entertainment, a result that the Court was unprepared to endorse or permit.
While the Court generally upheld the constitutionality of a scheme of adult-use licensing, it overturned as invalid certain key provisions that would have required the disclosure of the residential address, driver’s license number, color photograph, social security number, tax identification number, and fingerprints of the performers, noting that the collection of this information serves no purpose necessary for Cumberland’s purposes, is redundant, “and serves no purpose other than harassment.”
The Court overturned as unconstitutional and invalid certain provisions which would deny an adult entertainment license to applicants who had been convicted of certain vice offenses or who had a business license recently revoked, or who owed taxes: It said that there was no evidence that adverse “secondary effects” of expression could be eliminated by such measures, and it noted from its prior decision in City of Peoria v. Genusa that no doctrine known to the law permits cities and states to deny constitutional liberty of first amendment expression because someone has been convicted of a crime.
Can you imagine any court upholding a law requiring someone to get
a license before they printed a newsletter or newspaper or wrote to the
editor at a newspaper? Requiring a commercial photographer to have a license
before he takes pictures in any public place? Requiring an opera singer
to secure a license before she can sing on stage?
It is precisely the kind of decision we see in Island Bar that creates a precedent for someone who will someday, somewhere, point to allegedly adverse “secondary effects” of newspapers (Libel! False Advertising! Litter!), photographers (Invasion of privacy! Paparazzi! They caused Princess Di’s Death!) and opera singers (Decadent foreign cultural values praised in licentious foreign tongues! Opulent and lavish set design while poor inner-city kids starve!), and if such a sad day ever arrives that such arguments are made seriously, it will be the decisions of the federal courts concerning adult erotic entertainment that have opened the door to their consideration.
No one should go to jail for selling a tape. No one should have to
get a license to put on a performance in a private club. And no one in
government should be telling a free people what they can choose as entertainment
on a private stage. The whole point of being a free people and having a
First Amendment is that we alone, and no one else, should make decisions
for ourselves regarding taste, art, culture, and expression: It is for
the members of a free society to determine for themselves what performances
deserve to be enjoyed and which deserve to be ignored.
I cannot end this article without noting that Judge John Coffey was one of the three members of the Seventh Circuit who decided this case (although he did not write the opinion), a gentlemen whom I have known for three decades, since I was in Boy Scouts with his son up in Milwaukee, since I was an altar boy holding the paten under his chin at communion in daily early morning masses in my parish, since the summers when I spent hour after hour watching criminal trials in his courtroom in Milwaukee’s Safety Building during summer vacations, and then hurrying out early enough to get home in time to deliver papers on my paper route. When I was just a kid, I would sit in his chambers and ask him questions about the law, questions that he patiently answered. I can remember him sending me out of the courtroom when he thought the matter at hand was too strong or raw or indecent for a young boy. It is certainly true that he was an important influence on my early decision to become a lawyer. I could never have imagined then, that the day would come that he would be a federal appeals judge and that I would be a lawyer writing an analysis of an important case that he determined, here, in a time and place so far away from those innocent days in old-world Milwaukee.
A great many things have been written about Judge John Coffey, but I don’t think anyone has ever doubted his sincerity. I doubt neither his sincerity, nor that of this panel of the Seventh Circuit, which I suspect was doing the best it thought it could for liberty in keeping with its duty to follow unfortunate precedent set by the Supreme Court of the United States.
Joe Obenberger is a Chicago Loop lawyer concentrating in the
law of free expression and liberty under the United States Constitution,
and his firm has represented many owners, employees, and customers of adult-oriented
businesses throughout the metropolitan area. He can be reached in the office
at 312 558-6420 or paged at 312 250-4118. His e-mail address is email@example.com
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