If strippers can’t gyrate their hips, then neither can Britney Spears, nor could Elvis, if the King were still around today.
Declaring a Maricopa County ordinance tantamount to a “total ban on nude and semi-nude dancing in everything but name,” a 9th Circuit Court of Appeals judge invoked the famously controversial gyrations of Elvis Presley while ruling that sections of the ordinance prohibiting dancers from performing “simulated sex acts” were unconstitutional because they amounted to a total ban on erotic dancing.
The three-judge panel of the Circuit Court unanimously rejected the most restrictive parts of a 1997 ordinance drafted by Maricopa County that contained certain licensing requirements and operational procedures that adult businesses found objectionable, ruling that limiting the movement of a dancer is a violation of the First Amendment.
Noting that erotic dancing has already been accepted by courts as a form of speech, Judge Diarmuid O’Scannlain wrote in the 9th Court’s decision that “one is left to speculate as to what movements, precisely, a dancer may incorporate in a performance without running afoul of section 13(e)[the pertinent section of the ordinance under dispute], and yet still effectively convey an essentially adult, erotic, message to the audience.”
O’Scannlain then placed the section in perspective by noting that it would prevent all simulated sex acts – including those of many mainstream performers. “If Elvis’ gyrating hips can fairly be understood to constitute a ‘simulated sex act,’ one can fully appreciate the potential scope of the restrictions placed on erotic dancers in Maricopa County.”
In 1997 Maricopa County drafted a new ordinance with several sections that adult businesses found objectionable. Dream Palace, the club’s management, and a few dancers sued the county over the ordinance, rather than apply for licenses the County required of those working in adult businesses.
Portion of the ordinance were upheld, such as a section limiting the hours of operation and another implying the sufficiency of the state’s judicial system in meeting the requirements for prompt judicial review during the licensing process.
However, the plaintiffs won an important battle over the licensing requirements. Businesses, managers and employees that fell under the sweep of the ordinance were required to apply for permits that would become publicly available records, in effect allowing interested parties to learn the home address and real names of those who worked at the strip club.
The court sided with the plaintiffs by remanding that portion of the licensing section of the ordinance, ordering the district court to place an injunction on the county prohibiting it from releasing the identity and home addresses of those who had filed permits to work in an adult establishment.
“The First Amendment does not permit the county to put employees of adult entertainment establishments to the choice of either applying for a permit to engage in protected expression in circumstances where they expose themselves to [harassment]… or not to engage in such activity out of concern for their personal safety,” O’Scannlain wrote. “The chilling effect on those wishing to engage in First Amendment activity is obvious. Given the choice with which they are faced, we think it likely that those willing to engage in such activity will decline to do so.”
G. Randall Garrou, of the Los Angeles-based law firm Weston, Garrou & DeWitt, represented Dream Palace.
