Wednesday, October 12, 2005

Whose Rules?

Mike Sheffler of posts a comment on my last entry. I quote:

I could be off my rocker, but I was under the impression that the ... uh ... talent has always been obligated to maintain a four-foot clearance from the customer in Washington.

I'm from Spokane, and the sentiment there was that Washington strip clubs were lame because the girls always had to maintain that distance. Hence, everyone would flock to the Stateline strip club, situated just barely on the potato side of the Washington/Idaho border, where there was no such mandatory spacing.
Actually, it is determined entirely by local municipalities, subject to the usual First Amendment constraints. In California v. Larue the majority held that exotic dancing operates on the periphery of First amendment protections. Therefore any restrictions on it must satisfy strict scrutiny and be time, place, manner and content neutral. So how are buffer zones content neutral? I mean we don't require waitresses or hairstylists to maintain a buffer zone. Well the buffer zone ordinances have been found legal by the "Liberal" 9th Circuit Court of Appeals in their Colacurcio v. City of Kent decision where they found the bufferzones to be insignificant restrictions on speech, which do not fundamentally alter the message the dancer is trying to convey.

They were merely following the lead of the Supreme Court who felt in Barnes v. Glenn Theatres that wearing G-strings and pasties did not alter the expressive content of the speech and therefore was a minimal intrusion on the First Amendment. But then what justifies the need for buffer zones? The municipalities interest in preventing secondary effects. Souter was the first to apply the doctrine to nude dancing in Barnes v. Glenn Theatres, but it was later extended by the rest of the court in City of Erie v Pap's A.M. , ironically much to the chagrin of a remorseful Justice Souter.

Keywords: Buffer Zones, Secondary Efects

1 comment:

Mike Sheffler said...

I'll grudgingly admit that I'm not a constitutional scholar, but it seems that there is a disconnect in the chain of reasoning that (eventually) leads to buffer zones.

A few points:

* It seems to be unclear who is imbued with the power to fight secondary effects. Assuming that they (the effects) exist, it seems reasonable that they should be combatted at the most local level possible, but how is it determined who should fight against which and what kinds of problems?

* You said, "Well the buffer zone ordinances have been found legal by the "Liberal" 9th Circuit Court of Appeals in their Colacurcio v. City of Kent decision where they found the bufferzones to be insignificant restrictions on speech, which do not fundamentally alter the message the dancer is trying to convey.", which seems problematic.

To the best of my understanding, the authorities (persuant to the reservation I listed above) are -- in the spirit of U.S. v. O'Brien -- entitled to encroach upon first amendment rights in so far as the encroachment is as limited as possible, and that the encroachment addresses the harm to the other issue at hand (in this case, secondary effects, in O'Brien, the power of Congress to raise an army), which is itself substantive.

Let's assume for a moment that secondary effects exist, that these effects are of sufficient danger to the community at large that enjoining (albeit, in a limited fashion) certain parties from their first amendment rights is an acceptable by product of corrective measures, and that local authorities are within their rights both to address the secondary effects and to employ said measures. It seems obvious that the next point that should addressed is the ability of the measures to actually combat the secondary effects.

Presumably, the town's council of elders could obligate each fourth citizen to wear a funny hat on Tuesdays in order to combat the menaces to society that are the by-product of nudity in strip clubs, but it is not at all clear that this measure would be effective in any way.

Similarly, I'm not sure that pasties, G-strings, and buffer zones do anything to prevent the prostitution, low property values, assault, etc. that having a strip club in the neighborhood seems to most assuredly bring. It seems that full on closure of said businesses would be the way to combat the (imagined?) evil that follows close behind the installation of these clubs.

I'll agree that the case for stripping as (wholly) protected speech is pretty dodgy, but I'm not sure that relevant arguments for or against strip clubs are really being made in a sensible and consistent way by either side.