A state appeals court threw out the prostitution case against seven lap dancers and their managers late last week, saying Anaheim lacked jurisdiction to file the criminal charges.
"The City of Anaheim, in its own zeal to discourage disfavored entertainment forms, has crossed the line between regulation and criminalization," the 4th District Court of Appeals said.
The city can regulate lap dancing establishments, but its authority to wield criminal sanctions for violations of a "sex oriented business permit" is preempted by the state, the appellate panel said in its 3-0 ruling.
"Lap dancing won a major victory," Roger Jon Diamond, a lawyer for the dancers and managers, said. The city has not decided whether to appeal to the state Supreme Court, Assistant District Attorney Pat Ahle said.
Jurors convicted seven exotic dancers and two managers of the Sahara Theater after 1997 performances that were videotaped by undercover officers. The women, who were scantily clad, were arrested for violating a city code prohibiting erotic touching between entertainers and patrons.
The appellate court reversed the convictions, ordered the code violations thrown out and said a new trial must be held on the prostitution charges.
The court said a lower court judge failed to instruct the jury that it could consider exotic dancing as a form of expression protected under the First Amendment. Such dancing, when it does not include skin to skin contact, "is entitled to the same protection as a D.H. Lawrence novel, a painting by Goya, a Fellini movie, or one of the Bard's plays," the court said in its 21 page ruling.
The city of Anaheim argued that erotic dancing may be protected by the First Amendment but laws prohibiting prostitution were broad and that violations do not have to include sexual intercourse.
"This alluring distinction does not hold up under analysis," the court wrote, noting that American theater sometimes include audience volunteers in acts by comedians, hypnotists and jugglers.
"Thus, Anaheim's argument, while facile, does not work unless such performances do not enjoy First Amendment protection," the court said. "Another court may hold that; we will not."
