Missouri adult stores and cabarets were overjoyed when Judge Richard G. Callahan, at 5:30 this evening, struck down the adult-business restrictions contained in House Bill (HB) 972, which began life as an anti-drug bill, “Intoxication-Related Traffic Offenses,” due to the fact that under Missouri law, the legislative intent of a bill must agree with the bill’s title – and nothing about regulating adult video stores and night clubs has anything to do with drunk or drugged driving.
“Everybody’s happy,” said Gene Gruender, owner of Passions Video, a Missouri adult store. Gruender and wife Nellie Symm-Gruender have been following the various anti-adult measures for several months and lobbying legislators in an attempt to get the provisions removed from several bills.
“The provisions of HB 972 as originally introduced were tightly within the title and dealt with both civil and criminal matters,” wrote Judge Callahan. “The common thread was issues dealing with intoxication-related matters, not just civil matters and not just criminal matters ... As the Bill made its way through the legislative process, various amendments were made to the Bill but all continued to address intoxication-related matters. It was only on the second-to-last day of the session that the sections which are the subject matter of this lawsuit were added.”
But as the judge noted, according to Article III, Section 21 of the Missouri Constitution, “No bill shall be so amended in its passage through either house as to change its original purpose,” while Section 23 requires that, “No bill shall contain more than one subject which shall be clearly expressed in its title.”
HB 972 clearly violated both of those provisions, and the judge had no choice but to strike the added sections that did not conform to the bill’s constitutional requirements.
“Giving the provisions of Sections 21 and 23 their plain and ordinary meaning, this Court finds that HB 972 violates Article II, Sections 21 and 23 of the Missouri Constitution,” the judge wrote. “Following the principles for determining severability set forth in SSM Cardinal Glennon Children’s Hospital v. State ... it is the Court’s determination that the provisions of Sections 67.2540, 67.2546 and 67.2552 are severable from the remainder of HB 972.”
But as if that weren’t enough, the judge examined HB 972 even further and, in what may be a first in civil rights litigation, found that the new law would also create age discrimination regarding who would be allowed to enter adult businesses in the state.
“It is well established that the clear age of majority in Missouri is 18 years of age,” the judge declared. “While it is true that states have the constitutional authority to restrict alcohol consumption to adults under the age of 21, that power emanates from the 21st Amendment to the United States Constitution ... No similar grant of constitutional authority is delegated to the states for the purpose of regulating adult entertainment or free speech.”
“Like it or not, nude dancing qualifying as expressive conduct is a constitutionally-protected activity falling within the outer perimeters of the 1st Amendment of the United States Constitution ... Undisputed is the government’s right to combat the adverse secondary effects of adult entertainment businesses with content neutral regulation; equally undisputed is the government’s right to prohibit non-obscene sexually explicit materials from minors. However, eighteen, nineteen and twenty-year-olds are not minors and the State may not limit persons of majority age from engaging in lawful expressive conduct protected by the 1st Amendment of the United States Constitution without a substantial and direct connection to adverse secondary effects, a showing that has not been made.”
The invalidation of the anti-adult sections of HB 972 was the final nail in Sen. Matt Bartle’s attempts, which began last February, to make Missouri one of the most repressive states in the nation as far as free speech was concerned. Bartle had originally introduced Senate Bill (SB) 32, which AVN.com covered extensively until, seeing that bill near death, Bartle arranged for almost identical language to be inserted into HB 353, which we also covered here.
However, Bartle’s fellow legislators feared that adding the anti-adult legislation to HB 353, a general anti-crime bill, might trigger just the constitutional objections which Judge Callahan ruled applicable to HB 972, and before HB 353 passed both chambers of the legislature, the adult provisions were stripped out of that bill and added to HB 972. But with Judge Callahan’s ruling, all attempts to change Missouri’s existing adult business laws have now failed.
“This will go to the Supreme Court of the state,” Gruender predicted. “The reason I say that is that the attorney general, just as a matter of business, any time a law of the legislature is overturned, it goes to the Supreme Court for final ruling.”
Several attorneys were involved in the victory, including Richard Bryant, Jim Deutsch and Tom Rynard.
“Bryant has done most of the defense for the strip club industry and some other adult businesses in the Kansas City area for about 25 years,” Gruender said, “and he’s been fairly successful.”
Sadly, it’s unlikely that this will be the last chapter in Sen. Bartle’s attempts to “regulate” the state’s adult businesses out of business, but with the activism shown by free speech advocates like the Gruenders over the past six months, it’s clear he’ll have a much harder time getting support for future legislation.
