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Court finds Spokane can require open booths in adult businesses

By David Hudson
First Amendment Center

A Spokane, Wash., law that regulates adult businesses can require them to eliminate closed booths without violating the First Amendment. However, the law must be changed to include "sufficient procedural safeguards," a state appeals court ruled recently.

Certain of Spokane's adult entertainment establishments, known as adult arcades or peep shows, had featured private booths where patrons could watch sexually explicit films.

World Wide Video and Spokane Arcade cited both the First Amendment to the U.S. Constitution and Article 1, Section 5 of the state constitution in challenging various provisions of the law in state court.

Gil Levy, attorney for the clubs, said that he filed the latest lawsuit (an earlier suit failed in federal court) in part because "the Washington Supreme Court, about 10 years ago, held that the state constitution provided greater protection for free speech than the First Amendment."

Article I, Section 5 of the state constitution provides that "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right."

The clubs challenged several provisions of the city's adult entertainment ordinance, including a so-called "open booth provision" — eliminating booths closed off from public view — and a provision denying an adult entertainment licenses to those with prior criminal convictions.

City officials say they passed the "open-booth" provision because of "lewd activities" that occurred in the booths, including masturbation and other sexual activities, urination and drug usage.

The city's "open-booth" law required that doors to the booths be made of glass; that the interior of the booths be visible to business employees in the adjacent room; and that the booths have overhead light fixtures.

The clubs contended the open-booth regulations constituted content-based restrictions on freedom of expression.

However, the appeals court in Spokane Arcade, Inc. v. City of Spokane disagreed, finding that the regulations were content-neutral time, place and manner restrictions designed to restrict "undesirable secondary effects" associated with these adult arcades, including prostitution, controlled-substance violations and increases in other criminal activity.

The court wrote that the ordinance "does not dictate the content of the videos, nor does it restrict the number of booths in any store." The court also cited a number of court opinions across the country that had upheld similar "open-booth" provisions.

The appeals court did acknowledge that "free speech is interpreted more broadly under the Washington Constitution than the federal constitution" and that films, even nonobscene sexually explicit ones, are "considered pure speech and thus afforded the broader protection" of the state constitution.

Levy said the court's ruling with respect to the open-booth provision was "another bad opinion" in this area.

Patricia Walker, an assistant city attorney who wrote the law and defended it before the court, said that the decision was "well-reasoned."

"More and more courts are upholding these open-booth challenges, and I don't see this trend changing any time soon," she said.

However, the clubs did not lose on all points before the appeals court. They successfully challenged a provision that had allowed city officials to deny adult entertainment business licenses to those with past criminal convictions.

The city argued that the aim of the provision was to license "only facilities which employ persons sufficiently skilled and capable of distinguishing between legal and illegal material and conduct and capable of self-regulation."

The court rejected the city's argument, writing that "the city has failed to offer evidence that individuals who have been convicted of the ordinance are less capable of distinguishing between legal and illegal materials and activities."

The court concluded that the provision was an "unconstitutional prior restraint."

Walker said she did not have a problem with the court's decision to strike down the disqualification provision. "When I originally drafted this ordinance back in 1993, the law was consistent with other court decisions," she said.

"In light of some more recent decisions, the court of appeals was probably correct in its ruling. We will take this provision out of the Spokane ordinance," she said.

Walker explained that instead of rejecting a license applicant because of a past criminal conviction, "we will simply have to identify the locations run by individuals who have had past criminal convictions, especially past obscenity convictions, as areas needing a greater law enforcement presence."

The appeals court also struck down provisions regulating the suspension and revocation of adult business licenses.

The clubs contended that the law should have a "mandatory stay" that prevents city officials from closing down adult businesses until the owners have the opportunity to appeal license-revocation decisions.

The appeals court agreed, writing: "Both license denial and license revocation lead to the future suppression of constitutionally protected speech and as a result constitute prior restraint. The licensing of adult entertainment carries with it the possibility of unwarranted censorship and therefore must contain sufficient procedural safeguards."

The court concluded that city officials cannot enforce the ordinance until they cure these constitutional defects.

Levy said he was "pleased with the prior restraint rulings" and noted that the net effect of the court ruling was to buy his clients more time.

Levy said his clients would "probably appeal" the court's decision to the Washington Supreme Court. Walker said the city would not appeal any portion of the court's decision.


9th Circuit upholds city's sex-shop zoning law

Three-judge panel says Spokane, Wash., ordinance is narrowly tailored 'to serve [city's] substantial interest in reducing the undesirable secondary effects of adult stores.' 05.31.04

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