Source: The Freedom Forum Online
By: David Hudson
A federal appeals court panel has remanded a lower court decision upholding provisions of an Alabama law regulating nude dancing.
In 1998, Alabama amended its obscenity law to impose further regulations on nude-dancing businesses.
Ranch House, an Alabama corporation doing business as the Platinum Club in Calhoun County, challenged two provisions of the law in federal court in June 1998 on First Amendment grounds.
One provision required that adult performers wear a minimum of clothing to avoid exposing private parts. Another section prohibited adult-oriented establishments from locating within 1,000 feet of any church, park, recreation center, skating rink, school, or "any other place frequented by minors."
In September 1998, the federal district court upheld both statutes and dismissed Ranch House’s complaint.
On appeal, a three-judge panel of the 11th U.S. Circuit Court of Appeals last week vacated the lower court opinion and sent it back down for further proceedings.
The appeals panel determined in Ranch House, Inc. v. Amerson that "the ultimate question is whether the legislature’s purpose is to suppress the content of the proscribed message because of a disagreement with that message or concern over the direct effect of that message on its observers."
County officials contended that the purpose of the law was to combat harmful, secondary effects allegedly associated with adult businesses, such as increased crime and decreased property values.
Ranch House countered that the predominant purpose for the law was to suppress a form of expressive conduct that the legislators found distasteful.
The judges said the materials before them "at least at first blush, may tend to suggest that the Legislature’s purpose was indeed to suppress nude dancing based on opposition to the message which that particular form of expression conveys."
The panel cited the stated purposes of the law, which included to "prevent assaults on the sensibilities of unwilling adults by the purveyor of obscene material" and to "suppress the proliferation" of adult businesses.
The appeals panel noted that the U.S. Supreme Court has instructed that a listener’s reaction to speech is not a valid secondary effect in its 1988 decision Boos v. Barry.
County officials argued before the 11th Circuit that they did not have to present evidence explaining the Legislature’s purpose in enacting the law. They argued that it was reasonable to assume that the Legislature was concerned with harmful secondary effects.
The 11th Circuit rejected that argument, writing in its Jan. 17 opinion: "Adopting Defendants’ broad argument would permit the exception to swallow the rule, and would permit the proscription of protected speech far in excess of what the First Amendment allows."
The panel did note that the burden on the county officials on remand was not "rigorous." The 11th Circuit also said that on remand the state attorney general could become involved in the case to show that the state had a valid purpose in enacting the law.
In the meantime, the 11th Circuit extended a stay preventing enforcement of the challenged statutes until the lawsuit is resolved.
