An Ohio regulation banning the sale of liquor at places allowing nudity or sexual activity on their premises does not violate the First Amendment, a divided three-judge federal appeals court panel has ruled.
In 2004, the Ohio Liquor Control Commission passed a new rule that prohibited persons from appearing in a “state of nudity” or engaging in “sexual activity” at places holding a liquor license. The commission contended the regulation, Rule 52, was necessary to combat harmful adverse effects — called secondary effects — allegedly associated with adult businesses. Such adverse secondary effects are said to include increased crime and decreased property values.
The officials passed the new regulation after prior court decisions invalidated several sections of the previous version of Rule 52 on First Amendment grounds in 2000.
The commission’s latest version of the rule defined “nudity” as “the showing of the human male or female genital, pubic area or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple … the exposure of any device, costume, or covering which gives the appearance of or stimulates the genitals … or the exposure of any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of the nipples and/or areola.”
Another provision of Rule 52 provided that “no permit holder, his agent, or employee shall knowingly or willfully allow in and upon his license permit premises any persons to … appear in a state of nudity.” Yet another provision prohibited anyone on the premises from engaging in sexual activity, defined as “any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.”
In February 2004, days after the passage of the new Rule 52, owners of three strip clubs — including J.L. Spoons, Inc. — filed a lawsuit in federal court in Ohio contending that the three provisions violated the First Amendment. The lawsuit argued that the provisions were unconstitutionally overbroad because they swept within their ambit a substantial amount of protected expression.
In April 2004, U.S. District Judge Ann Aldrich granted a preliminary injunction, preventing enforcement of the challenged sections of Rule 52 in J.L. Spoons Inc. v. Morckel. Judge Aldrich determined that the contested provisions would chill much mainstream artistic expression in addition to activities that take place at adult-entertainment clubs.
“To advance its secondary substantial interest in the reduction of adverse secondary effects, the State may prevent erotic dancers from appearing totally nude,” Aldrich wrote. “However, in doing so, the State may not curtail a substantial amount of protected expression outside the realm of adult entertainment.”
She granted a preliminary injunction to the plaintiffs, preventing state officials from enforcing the rule “anywhere in the state of Ohio.” Then, in January 2007, Aldrich granted the challenging club owners a permanent injunction.
The state appealed to the 6th U.S. Circuit Court of Appeals, contending that the law was not substantially overbroad. On Aug. 15, 2008, a three-judge panel of the 6th Circuit reversed by a 2-1 vote in J.L. Spoons Inc. v. Dragani.
Writing for the two-judge majority, Judge Eugene Siler reasoned that invalidating the rule “would impose substantial societal costs because it would hamper Ohio’s legitimate interest in curtailing the negative secondary effects, such as prostitution and drug trafficking, associated with an environment mixing alcohol with nudity and sexual activity.”
In his opinion, Siler characterized the impact on mainstream artistic expression — such as plays performed at various theaters — as “incidental.” He added that “any arguably impermissible application of the statute to citizens engaged in artistic expression amounts to no more than a fraction of Rule 52’s reach.”
Judge R. Guy Cole Jr. dissented, finding that the statute would criminalize a substantial amount of protected expression outside the typical adult strip club. He noted that the law would apply to expression at numerous venues — not just strip clubs — including the Cleveland Museum of Arts, the Cleveland Agora Theater and Ballroom, the State Theater, the Playhouse Square Foundation and many others.
Cole noted that many mainstream artistic performances involve individuals appearing nude. He cited various scenes from such award-winning plays as Chicago, Big Bertha, Hair, Wit, A Streetcar Named Desire and Equus.
“The Commission reminds us time and time again that the state has a strong interest in regulating the negative secondary effects associated with nudity and sexual activity in nude-dancing establishments,” he wrote. “I don’t have a problem with that. But the state’s interest in regulating those effects does not explain its interest in stopping a playhouse with an alcohol permit from presenting a ballet with a brief scene simulating nudity.”