Federal appeals panel remands challenge to Alabama nude-dancing law

Tuesday, January 23, 2001

Editor’s note: The Associated Press reported that Harvey and Bobbie Bowman agreed to plead guilty on Aug. 11, 2003, to running a multimillion-dollar prostitution front. The Bowmans, who once waged a free-speech fight to keep open the Platinum Club — Alabama’s only nude-dancing club — reached a plea deal with prosecutors on the day they were set for trial. The Bowmans had challenged the state’s anti-nudity law in an attempt to keep operating the Anniston club. They agreed to plead guilty to conspiring to launder money, obstruct justice and conduct illegal business across state lines. Harvey Bowman was to receive a sentence of 1 1/2 years in prison under the agreement, and his wife was to receive a 2-year sentence.

A federal appeals court panel has remanded a lower court decision
upholding provisions of an Alabama law regulating nude dancing.

In 1998, Alabama amended its obscenity law to impose further
regulations on nude-dancing businesses.

Ranch House, an Alabama corporation doing business as the Platinum
Club in Calhoun County, challenged two provisions of the law in federal court
in June 1998 on First Amendment grounds.

One provision required that adult performers wear a minimum of
clothing to avoid exposing private parts. Another section prohibited
adult-oriented establishments from locating within 1,000 feet of any church,
park, recreation center, skating rink, school, or “any other place frequented
by minors.”

In September 1998, the federal district court upheld both statutes and
dismissed Ranch House’s complaint.

On appeal, a three-judge panel of the 11th U.S. Circuit Court of
Appeals last week vacated the lower court opinion and sent it back down for
further proceedings.

The appeals panel determined in Ranch
House, Inc. v. Amerson
that “the ultimate question is whether
the legislature’s purpose is to suppress the content of the proscribed message
because of a disagreement with that message or concern over the direct effect
of that message on its observers.”

County officials contended that the purpose of the law was to combat
harmful, secondary effects allegedly associated with adult businesses, such as
increased crime and decreased property values.

Ranch House countered that the predominant purpose for the law was to
suppress a form of expressive conduct that the legislators found

The judges said the materials before them “at least at first blush,
may tend to suggest that the Legislature’s purpose was indeed to suppress nude
dancing based on opposition to the message which that particular form of
expression conveys.”

The panel cited the stated purposes of the law, which included to
“prevent assaults on the sensibilities of unwilling adults by the purveyor of
obscene material” and to “suppress the proliferation” of adult businesses.

The appeals panel noted that the U.S. Supreme Court has instructed
that a listener’s reaction to speech is not a valid secondary effect in its
1988 decision Boos v. Barry.

County officials argued before the 11th Circuit that they did not have
to present evidence explaining the Legislature’s purpose in enacting the law.
They argued that it was reasonable to assume that the Legislature was concerned
with harmful secondary effects.

The 11th Circuit rejected that argument, writing in its Jan. 17
opinion: “Adopting Defendants’ broad argument would permit the exception to
swallow the rule, and would permit the proscription of protected speech far in
excess of what the First Amendment allows.”

The panel did note that the burden on the county officials on remand
was not “rigorous.” The 11th Circuit also said that on remand the state
attorney general could become involved in the case to show that the state had a
valid purpose in enacting the law.

In the meantime, the 11th Circuit extended a stay preventing
enforcement of the challenged statutes until the lawsuit is resolved.