Judge strikes down liquor department rule banning nude dancing in clubs

By David Hudson
First Amendment Center

A federal judge recently ruled that an Ohio liquor department regulation that prohibits "improper conduct of any kind" and "immoral activities" in businesses that serve liquor egregiously violates the First Amendment.

Tiffany's Cabaret, a topless dance club in Brunswick, Ohio, challenged the law after state and city officials ruled that the club could not offer nude dancing because such activity qualifies as "improper conduct" and "immoral" under the administrative regulation.

The regulation, known as Rule 52, reads: "No permit holder, his agent or employee shall knowingly or willingly allow in, upon or about his licensed premises improper conduct of any kind, type or character; any improper disturbances, lewd, immoral activities or brawls; on any indecent, profane or obscene language, songs, entertainment, literature, pictures, or advertising materials."

The law provides that "entertainment consisting of dancing, either solo or otherwise, which may or can, either directly or by implication, suggest an immoral act is prohibited."

Federal district court Judge Ann Aldrich ruled in J.L. Spoons, Inc. v. City of Brunswick that "Rule 52 is overbroad on its face because it sweeps within its reach a substantial amount of constitutionally protected conduct and speech." The court wrote that the law employed "several extraordinary vague terms," such as "improper," "lewd," "immoral," "indecent" and "profane" without defining them.

The judge gave several examples of ways in which the law was overbroad. She reasoned that, for instance, state officials could punish a club that featured a comedian who, in the style of a Richard Pryor or a George Carlin, used "coarse language." According to the judge, a restaurant featuring non-obscene artwork containing nudity could also be found in violation of the rule.

The court concluded that "the type of protected First Amendment expression that Rule 52 threatens to punish is seemingly endless."

Michael Murray, attorney for the club and president of the First Amendment Lawyers Association, said: "I have done First Amendment work for more than 20 years and have opposed government censorship at the federal, state and local levels on a variety of issues. The regulation at issue in this case is by far the most blatantly unconstitutional one that I've ever encountered. The judge wrote an excellent opinion."

Attempts to reach the assistant attorney general who argued the case on behalf of the city of Brunswick and state officials were unsuccessful.