Hallelujah!
State Sen. Matt Bartle doubtlessly thought his omnibus anti-porn bill, SB 32, was dead after the less-than-receptive hearing it had in front of the Missouri House Committee on Local Government on April 21. (See story here.)
But nay! I say to you NAY! Sayeth the Book of Romans, "[J]ust as Christ was raised from the dead through the glory of the Father, we too may live a new life." And new life it shall have!
Just one week after the Local Government Committee debacle, lo and behold, much of the text of SB 32 has reappeared as a Senate Committee (read: "Bartle") amendment to HB 353, whose original function was to give more power to the Missouri capitol police squad, and to define which chemicals are now illegal to be manufactured or possessed under Missouri law (looks like just about everything but aspirin).
Left behind is SB 32's most onerous provision, requiring all adult businesses to charge a $5 admission tax, and to pay a 20 percent tax on adjusted gross earnings. The HB 353 provisions contain no taxes on adult whatsoever.
Resurrected is the definition for "sexually-oriented business" which now means, "An adult cabaret or any business which offers its patrons goods of which a substantial portion are sexually-oriented material. No building, premises, structure, or other facility that contains any sexually-oriented businesses shall contain any other kind of sexually-oriented businesses."
Gone is the requirement from SB 32 that "any business where more than ten percent of display space is used for sexually-oriented materials shall be presumed to be a sexually-oriented business," but the unconstitutional vagueness of "substantial portion" remains for Missouri's courts – and eventually for the U.S. Supreme Court – to work out.
Added, however, is a problem the U.S. Supreme Court has already shipped back to California in overruling the summary judgment in City of Los Angeles v. Alameda Books: The "two adult uses under one roof" prohibition.
"I'm not aware of any state that has that blanket prohibition," commented John Weston, the prominent First Amendment attorney who argued Alameda before the Supreme Court. "There are very, very few cities that have tried to adopt this, and particularly, no one's wanted to adopt it in this context in the pendancy of Alameda, given the ambiguity and elasticity of the Supreme Court decision... It always seemed to me that the whole concept was unwise, unnecessary and unjustified, and really designed for, in a sense, harassment purposes rather than anything else, and I've never seen any data that remotely suggested anything to the contrary."
The problem of what are "sexually-oriented materials" remains, with the concept being defined as "any pictorial or three dimensional material, or film, motion picture, DVD, video cassette, or similar photographic reproduction, that depicts nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a way which is patently offensive to the average person applying contemporary adult community standards with respect to what is suitable for minors."
In other words, it seems than anything that an adult, "applying contemporary adult community standards," would consider to be "patently offensive" for a minor is deemed to be "sexually-oriented material." This is basically a backdoor method to attempt to restrict what adults can view, since other sections of the law restrict where and in what manner businesses that deal in "sexually-oriented materials" can operate, none of which have anything to do with minors, and which minors are specifically prohibited from entering.
The definition of "specified criminal activities" hasn't changed much, but that section does add a new wrinkle: "The fact that a conviction is being appealed shall not prevent a sexually-oriented business from being considered a nuisance and closed under section 67.2546." Can you say, "Guilty until proven innocent?"
Interestingly, a "nuisance" is defined as "any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists, or any place, in or upon which lewd, indecent, lascivious, or obscene films, or films designed to be projected for exhibition, are photographed, manufactured, developed, screened, exhibited, or otherwise prepared or shown, and the personal property and contents used in conducting and maintaining any such place for any such purpose."
Indeed, whereas SB 32 prohibited arcade booths outright, HB 353 now allows them, as long as "the viewing room is visible from a continuous main aisle in the sexually-oriented business and such viewing room is not obscured by any curtain, door, wall, or other enclosure." And now there's an anti-glory hole provision: "No viewing room shall be occupied by more than one individual at a time and there shall be no aperture between viewing rooms which is designed or constructed to facilitate sexual activity between persons in different rooms."
And while one might think that definition would exclude adult stores without arcades (unless "exhibited, or otherwise prepared" as regards "lewd, indecent, lascivious, or obscene films" is stretched to mean "sold or rented"), a later section reads, "If a sexually-oriented business allows specified criminal activity or specified sexual activity on its premises or otherwise fails to comply with the provisions of subsection 1 of this section, it shall be considered a nuisance as defined by section 67.2540, and shall be closed pursuant to section 567.080, RSMo." "Specified criminal activity" includes "dissemination of obscenity," "sale, distribution, or display of harmful material to a minor" and "sexual performance by a child" by which they undoubtedly mean child porn.
But remember: Just because an obscenity bust is under appeal won't prevent the state from closing the business as a "nuisance." And who knows how many sting operations are in the works, where a mature-looking minor is sent into the adult business in order to cause a violation.
Dance clubs fare pretty much the same under HB 353 as under SB 32: It's a crime "for a person to knowingly and intentionally appear in a state of nudity or depict, simulate, or perform specified sexual activities in a sexually-oriented business." "Perform" would probably pass constitutional muster, but "depict"? "Simulate"? Communicating an erotic message is still protected under the First Amendment.
And employees in a "semi-nude condition" in those establishments "shall be at least ten feet from any patron or customer and on a stage at least two feet from the floor and behind a railing no less than twenty-four inches in height." Perhaps the clubs will start providing 10-foot poles with which customers can pass tips to dancers?
Whoops; forget that idea: "It shall be a class A misdemeanor for an employee, while semi-nude in a sexually-oriented business, to solicit any pay or gratuity from any patron or customer or for any patron or customer to pay or give any gratuity to any employee, while said employee is semi-nude in a sexually-oriented business."
Oh, well; they can always just dance for the sheer joy of it...
And finally, repeated here from SB 32, "No sexually-oriented business may remain open at any time between the hours of midnight and ten a.m. on weekdays and Saturdays. Such businesses shall be closed on all official state or federal holidays and Sundays." (Can't have semi-nude dancers and adult video retailers defiling the "Lord's day"...)
Adult businesses in Missouri can use everyone's help in convincing the legislature how bad this bill is. Their phone numbers and e-mail addresses can be found at http://www.moga.state.mo.us, so by all means – and especially readers in Missouri – call and write to them about this issue.
Missouri: Not getting any friendlier to adult business.
