High court asked to determine constitutionality of nude-dancing restriction

Wednesday, July 28, 1999

The U.S. Supreme Court could determine the fate of adult entertainment establishments and table dancing if it agrees to review a 9th Circuit decision that upheld a Kent, Wash., ordinance requiring nude dancers to perform at least 10 feet away from patrons.

Three prospective adult business owners in Kent, Wash., contend the ordinance, which operates as a complete ban on table dances, will force nude-dancing businesses to close down from loss of revenue.

They further allege that Kent city officials' purpose for passing the 10-foot rule was to financially ruin the businesses. The petitioners also contend that the ordinance violates First Amendment rights by outlawing table dancing — which they say is a “unique medium of expression.”

Last December, the 9th U.S. Circuit Court of Appeals upheld a lower court's ruling that the ordinance was constitutional. The appeals court determined that the law was a valid time, place and manner restriction on speech that did not infringe on plaintiffs' free-expression rights.

Instead, the appeals court agreed with city officials that the law did not violate the First Amendment because it was passed not to silence expression but to ameliorate the harmful, secondary effects allegedly associated with such businesses.

The 9th Circuit also noted that the law did not ban all dancing in the club, writing that “the ten-foot distance requirement does not rob dancers of their forum or their entire audience.”

In their appeal to the U.S. Supreme Court in Colarcucio v. City of Kent, the plaintiffs argue that the 9th Circuit erred by refusing to look beyond the city's stated justification for the law.

“When First Amendment free-speech rights are at stake, courts must look beyond the government's articulated justification when determining whether a law is content-neutral,” the plaintiffs write in their petition to the U.S. Supreme Court.

The prospective nude-dancing business owners point to several statements by city officials showing their intent to close down adult businesses. These statements raise substantial evidence, the plaintiffs allege, that the “true predominant purpose” for the 10-foot rule was not to prevent secondary effects but to “pose an insurmountable economic obstacle to the opening of adult nightclubs.”

In their petition to the high court, the petitioners also contend that the 9th Circuit erred when it discounted the testimony of their two expert witnesses on dancing. Those experts testified that table dancing is a unique mode of expression separate and distinct from other forms of dance in a club, such as stage dancing.

One expert, Dr. Judith Hanna, testified that “the table dancer focuses on an individual audience member … to send a personal message not manifestly intended for the audience as a whole.”

However, the petitioners say that if the U.S. Supreme Court does not examine the 9th Circuit's decision, more than table dancing is at stake. According to the plaintiffs, the 9th Circuit's opinion threatens high court's “basic principle” of First Amendment law that the government may not regulate speech simply because it disagrees with the message of that speech.

William Schoel, the attorney representing the city of Kent in this case, said the 10-foot distance requirement does not infringe on First Amendment free-expression rights. “The federal district court judge in this case stated quite appropriately that the First Amendment does not guarantee patrons or performers the maximum erotic experience possible,” he said. “These distance requirements have been upheld in 14 other cases.”