legal 5.01

The Day They Made Dancing a Crime in Iowa

Last year Iowa passed a law criminalizing nude performances in “certain establishments.” Iowa Senate File 503, known as the “juice bar” or “nude dancing” law, goes far beyond any attempt to control obscenity, or any stunt the OLCC might pull in connection with the entertainment at a bar that sold liquor.

The Iowa law bans mere nudity in purely private, adult-only contexts where expression that involves sexuality occurs. Specifically, the law, which went into effect immediately upon the governor's signature in early May, flatly bans nudity in business establishments required to hold a sales tax permit. Since any business that retails to the public has to have a sales tax permit, that meant one thing: no nude dancing anywhere in the state.

The Iowa chapter of the ACLU brought suit, of course, charging that the law infringes upon the First Amendment right to free expression of “juice bar” owners, performers and patrons. The suit also charged that the law is unconstitutionally overbroad, vague, excessive, and subject to arbitrary and capricious enforcement.

It took a federal judge just six hours after a hearing was held on May 29 to issue a preliminary injunction against enforcement of the law. Judge Harold Vietor’s order states that the U.S. Supreme Court has recognized that “while nude dancing may fall within the outer perimeters of First Amendment protection, it is indeed expressive conduct that is protected by the Constitution.” He found the Iowa ACLU had presented “a variety of plausible arguments” showing the law impermissibly deprives the plaintiffs of protected First Amendment rights. He went on to say that at this stage of the proceedings, the defendants had “failed to meet their burden of demonstrating a constitutionally permissible justification for this deprivation,” which is a nice, judge-like way of saying that the State hadn’t demonstrated that it was up to anything worth doing and shouldn’t be allowed to interfere with people’s rights until it does.

Before the judge ruled, one ACLU officer warned the public that “This law has `coming soon and headed for a theater near you!’ written all over it. Legislators have already shown an interest in expanding the law to include mainstream theaters and performing art centers. There can be no double standards concerning our freedom of speech. Either a principled stand is taken now, or we shall have no standards at all.” The Iowa ACLU Executive Director now hopes that continued success on the case might have a beneficial effect on the Iowa Legislature. “Perhaps a federal injunction of this law will embolden our more responsible legislators to rein in their right-wing Decency Squad colleagues and spend more of the people’s lawmaking time solving real problems instead of inventing puritanical ones," he said.

So, three cheers for the Iowa ACLU and for one courageous federal judge. But what does this mean to Oregon adult-business patrons and proprietors? Are we immune from such abusive efforts to keep people from watching what they want to watch? You know better than that or you wouldn’t be reading Exotic. The State has the power to regulate a variety of things, in many ways. In Oregon, the agency which has set itself up as the protector of all things decent is the agency which was originally set up just to protect us from rotgut liquor: the Oregon Liquor Control Commission.

Next issue, I’m going to take a look at how the OLCC abuses power, why it does it, and why it gets away with it.

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