Clubs claim law regulating ‘live sex acts’ infringes on First Amendment rights

Wednesday, January 13, 1999

Despite losing a recent motion in federal court, four adult clubs continue to battle the city of Phoenix over a newly enacted ordinance that targets live sex acts.

The owners of Chameleons, Guys and Dolls, Encounters and Discretions contend in their lawsuit filed last week, Recreational Developments of Phoenix, Inc. v. City of Phoenix, that the law violates First Amendment-protected “expressive activity” at their businesses.

Last week a federal judge denied the clubs' motion to prevent enforcement of the law pending a resolution of their lawsuit.

Christopher Kaub, one of the clubs' attorneys, says that there has been a “gross misconception” about the businesses. “The purpose of these clubs, which are private membership-only associations, is to provide a location where open-minded people with similar beliefs can meet, dance expressively and discuss the philosophical viewpoints associated with their lifestyle,” he said.

The lawsuit says that members of the club “dance, socialize, engage in certain other forms of expressive activity including performances that may be erotic or sexual in nature and participate in certain consensual conduct involving other adults, all or some portion of which may fall within the broad scope of the term 'Live Sex Act.'”

Kaub says government officials should quit imposing their morals upon the protected activities of consenting adults.

The lawsuit further alleges that the city ordinance violates the First Amendment because it “regulates the content of speech rather than any real and legitimate secondary effects actually caused by the types of speech and expressive activity engaged in by the Plaintiffs at the private Social clubs.”

However, the Phoenix City Council passed the ordinance last month, writing that “live sex act businesses” contribute to the spread of sexually transmitted diseases and are harmful “to the health, safety, general welfare and morals of the inhabitants of the city of Phoenix.”

The ordinance provides that “it shall be unlawful for any person to operate and maintain a live sex act business” and that “operation of a live sex act business is a public nuisance per se which may be abated by order of the Phoenix Municipal Court.”

Phoenix assistant city attorney James Hays says that the law only targets the sexual acts, not the speech or expression that may or may not occur at the clubs. “There may well be protected First Amendment activity going on in these clubs,” he said. “However, this law is simply directed at live sex acts; it is not directed at expressive activity or speech, but conduct.

“There is no constitutional right to run a business where people are encouraged or permitted to engage in sex acts or to watch others engage in sex acts,” Hays said.

So far at least it seems the courts agree with city officials.

A day after the lawsuit was filed on Jan. 6, U.S. District Judge Rosalyn Silver rejected the social clubs' motion for a temporary restraining order. The 9th Circuit Court of Appeals rejected the plaintiffs' appeal to prevent enforcement of the law on Jan. 8.

However, Anthony DePrima, another of the clubs' attorneys, told The Arizona Republic that “the case is not over; this is only Round 1.” DePrima said that the next step would probably be a hearing next month before Silver in which the clubs would ask for a preliminary injunction against enforcement of the ordinance.

However, Hays says that in the meantime city officials are enforcing the law. “By enforcing, I do not mean just running in and chaining doors and closing businesses down, we are talking about a process of investigation,” he said.

DePrima and Kaub insist that the ordinance contains several constitutional flaws and contains overly broad language. According to them, the law's definition of “live sex act business” — “any business in which one or more persons may view, or may participate in, a live sex act for consideration” — could apply to any hotel or motel.

They also allege that the law provides no guidelines for judges to determine whether a business is in violation of the law. “This law is insidious,” Kaub says, “because it allows government officials to brand certain businesses as 'live sex act businesses' and will lead to selective enforcement of the law.”