Federal appeals court upholds 10-foot buffer zone in nude-dancing case

Monday, December 14, 1998

A law in Kent, Wash., forbidding nude dancers from performing within 10 feet of patrons does not violate First Amendment free-expression rights, a federal appeals court ruled recently.

The city of Kent, which in 1982 published a study on the impact of adult entertainment on communities, passed the 10-foot rule in 1996. The law provides: “No dancing or adult entertainment by any entertainer shall occur closer than ten (10) feet to any patron.”

Three individuals, doing business under various company names, challenged the law shortly after it was passed, saying it effectively precluded them from opening up a non-alcoholic adult nightclub in the city.

The plaintiffs contended the law was a content-based restriction on free-expression rights that amounted to a ban on table dancing. The plaintiffs further alleged that table dancing, as a form of expression different from stage dancing, was entitled to a separate First Amendment analysis.

A federal district court judge rejected the plaintiffs’ arguments and granted summary judgment to the city in November 1996.

On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 in Colacurcio v. City of Kent last week that the ordinance did not violate the First Amendment.

City officials argued that the law was a valid time, place and manner restriction on speech and did not ban nude dancing.

However, the plaintiffs argued that even if the law was considered a time, place and manner restriction, it was still unconstitutional because other less burdensome alternatives could have satisfied city officials’ concerns about unlawful sexual contact, such as a no-touch rule or a one-foot buffer zone.

However, the judicial majority found the ordinance to be valid, writing: “A regulation of the time, place or manner of protected speech must be narrowly tailored to serve the government’s legitimate content-neutral interests, but it need not be the least restrictive or the least intrusive means of doing so.”

The opinion said that the judges would “leave the fine-tuning of the distance requirement to the legislative body” — in this case the city council.

The plaintiffs’ contention that table dancing is a unique form of expression entitled to separate First Amendment analysis from stage dancing made the case “unusual,” according to the majority opinion.

“The ten-foot distance requirement does not rob dancers of their forum or their entire audience,” wrote the judges.

They also rejected the plaintiffs’ claims that the 10-foot buffer zone violated the First Amendment because it make adult businesses unprofitable.

“The test is whether a business could operate under the regulation at issue, not whether a particular business will be able to compete successfully within the market,” wrote the court.

Judge Stephen Reinhardt dissented, noting that the rule “effectively outlawed table-dancing.”

Reinhardt cited two experts presented by the plaintiffs — cultural anthropologist Judith Hanna and communications professor Dr. Edward Donnerstein — who both testified that the messages conveyed by erotic dancers in table dances was qualitatively different than the messages conveyed by stage dances.

“To the extent that a reasonable trier of fact might conclude that table dancing and stage dancing are qualitatively distinct forms of expression, the ordinance is itself facially content-based,” Reinhardt wrote.

According to Reinhardt, it was not appropriate for the court to “substitute its own views” regarding table and stage dances in place of the views of a jury.