LAS VEGAS – Exotic Dancer's 2007 Gentlemen's Club Expo opened its seminar schedule with a bang on Tuesday with a legal panel that brought together six of the finest minds serving the adult community.
The topic was "Decisions, Government Tactics and Your Club," but most of the issues discussed by luminaries Brad Shafer, Alan Begner, Jamie Benjamin, H. Louis Sirkin, Daniel Silver and Randy Tigue applied equally to adult retailers.
Shafer, as moderator, began the session by noting that all the panelists except one were past presidents of the First Amendment Lawyers Association (FALA) ... and that within a couple of years, Begner, the organization's current secretary, would join that group as well.
Certainly one of the themes of this panel was that the days of easy defense wins against anti-adult laws are over, and that thanks to some very active religious right groups, boilerplate comprehensive anti-adult ordinances are being considered more and more by cities anxious to "protect" their citizenry from the scourge of free erotic speech. Shafer cited as an example one ordinance in Hammond, Indiana that required dancers to get HIV tests before being allowed to receive a license to dance at local clubs.
However, Begner, the first speaker, had some encouraging words about the attitude of his home town, Atlanta, Georgia, toward adult clubs. He noted that he had been able to work well with city officials to keep nude clubs' ability to serve alcohol to patrons, due in large part to the fact that the combination continues to bring large numbers of conventions to the town, and plenty of tax money to city coffers.
Begner said that most of the attempts at regulation that he'd seen recently have involved prohibiting dancers from touching each other, but that thanks to the testimony of sociologist Dr. Judith Hanna, courts had been willing to allow dancers to express their "erotic message" in just about any way that didn't involve "simulated masturbation" or touching customers.
Shafer followed up on Begner's remarks by calling on club owners to be ready to supply "smart dancers" who can intelligently talk about the message they attempt to convey through their dance, and noted that several cases, including the seminal anti-nudity case Barnes v. Glen Theater, appear to have been lost because such testimony was absent from the case. Benjamin then added that in response to his firm's success in court at having police officers barred from being the plaintiff in complaints of lewdness by dancers, the Florida legislature recently changed the law to allow cops to be complainants in such cases.
The next speaker was Benjamin, who spoke about his recent loss in the 11th Circuit in the case of Daytona Grand v. City of Daytona, after a spectacular win in the case at the trial level. Daytona, which he described as a "sleepy town" that comes awake only during the Daytona 500 and during collegiate spring break, had tried to adopt a "no alcohol/no nudity" ordinance, which several clubs, notably Lollipops, had sued to overturn.
The city's evidence at trial was basically from Daytona's mayor and chief of police, both of whom testified that the clubs caused crime in the area. The clubs, however, had hired several experts, including Drs. Daniel Linz and Randy Fisher, to perform studies of the alleged adverse secondary effects of the clubs, and found (no surprise) that there was no more crime around the clubs than at other "control" locations in the area, and that property values around the clubs had gone up at the same rate as that of the "control" properties. After Linz and Fisher's testimony, which took place during a protracted trial, the judge declared that the Daytona witnesses had presented "shoddy data," and overturned the ordinance.
But during Daytona's appeal of the case, Benjamin ran into bad luck, drawing an 11th Circuit appeals panel headed by Judge Stanley Marcus, the former U.S. Attorney for southern Florida, who Benjamin said he thought had pre-decided the case. Marcus ruled that although Daytona's evidence may have been wrong, it was legitimate for the city to rely on such evidence in enacting its ordinance if it believed the evidence was correct when considering the ordinance. He also dismissed the Linz and Fisher studies by speculating that there could have been unreported crime around the clubs that the experts had not detected.
"We had justice and some asshole took it away," is how Benjamin characterized the 11th Circuit decision.
Benjamin has made a motion for an en banc reconsideration of the ruling, and has been waiting five weeks for a decision from the court as to whether it will grant the en banc – which he noted is an exceptionally long time to wait for such a decision.
Dan Silver next took the microphone to talk about "alternate avenues of communication," a phrase taken from the Supreme Court's Renton v. Playtime Theatres ruling, and which Silver referred to as "the forgotten child in the battle for expression." In Renton, the high court ruled that it was appropriate for cities to regulate the alleged secondary effects of adult businesses as long as there were left open "alternate avenues of communication" – that is, other locations to which the businesses could move. Silver then discussed how difficult that idea has been to put into practice, with some municipalities (notably in the 2nd Circuit) providing less than 1% of a town's acreage for adult by claiming that the adult businesses could prove that the demand for their product required any more space than that. Silver noted that he himself had lost a case on that basis, where a town had provided just one possible adult relocation site.
Shafer announced that he had saved Lou Sirkin's segment for near the end because the news Sirkin had was so depressing. And indeed, Sirkin's topic covered topics such as the problems facing adult businesses of RICO forfeiture and nuisance abatement, which he said often resulted from club owners allowing prostitution or prostitution-like activities to take place in their clubs.
Sirkin noted that most club owners don't know the definition of "prostitution" in their areas, and that, for example, in Ohio, if a club patron pays for two dancers to touch each other intimately, even if the dancers have no physical contact with the patron, the act is still considered to be prostitution – and that once an adult business has enough allegations of such misconduct on its record, even if the charges are thrown out in court, the mere fact of the multiple charges can lead to a "nuisance abatement" action which can close the business for up to one year.
Sirkin also informed the audience of approximately 200 that if a club has a website on which it shows dancers performing, that the club would be required to keep 2257 records on the dancers, with all the paperwork and cross-indexing that that law requires.
The penultimate speaker was Randy Tigue, who had authored the respondents' brief in the famous Supreme Court case of Erie v. Pap's, and he relayed the tale of adult club owner Richard Jacobsen, who, through an interesting turn of events (too complicated to fully relate here), had wound up accused of voter fraud in his town of Coats, Minnesota. During his talk, Tigue quoted extensively from Dr. Marty Klein's book, "America's War on Sex," which he said he found to be highly informative.
Shafer had reserved the final speaker's spot for himself. He said that although his practice currently consists solely of representing the Déjà Vu chain of dance clubs, he wanted the other First Amendment attorneys both on the panel and in the audience to know, "When you lose a case, it affects me personally" by making it harder for Shafer to win his own cases through prior adverse rulings.
Shafer recalled the first anti-adult zoning case ever to reach the Supreme Court, Young v. American Mini-Theatres, which was a devastating loss for the adult industry – and then said he wanted the audience to remember two names: Eric Damian Kelly and Connie Cooper. Those two, he said, had recently been paid $82,000 to rewrite Detroit's adult zoning ordinance – an ordinance which had just been overturned by the courts, leaving Detroit currently without any adult zoning regulation.
Shafer also noted that in about one month, the U.S. Supreme Court will be deciding what cases it will consider for the coming year, and that the high court currently had before it three petitions for review that involved secondary effects-related decisions: One of his own, one of Sirkin's and one led by First Amendment attorney Robert Corn-Revere.
Watch AVN.com in the coming days for a more extensive analysis of this excellent seminar.
