Injunction against future lewd acts is prior restraint, says Tennessee court

Thursday, October 14, 1999

A trial judge's order prohibiting any future “lewd and obscene exhibition of the genitals” at a nude dancing club constitutes a prior restraint on speech in violation of the First Amendment, a Tennessee appeals court has ruled.

In 1997, Memphis law enforcement officials began investigating the adult cabaret Pure Passion. Officers discovered that performers were performing lap dances and patrons were touching performers' breasts.

Chancellor Floyd Peete Jr., who determined that lap dancing constituted prostitution under Tennessee law, issued an injunction prohibiting lap dancing and any future “lewd and obscene exhibition of the genitals.”

The owners of Pure Passion appealed, challenging both the lap-dancing ruling and the injunction against future lewd acts.

Although the Tennessee Court of Appeals upheld the ban on lap dancing, the court did find that the injunction violated the First Amendment.

The appeals court noted in its Oct. 5 opinion in State v. Jackson that nude dancing receives some protection under the First Amendment. “Although we do not consider the extent of that protection to be important to the present case, the fact that such protection does exist is of vital importance,” the court wrote.

The court was troubled by the fact that Peete had not defined the future lewd acts that were not to be performed. “We realize that the intent of the order was to enjoin specific acts. However, at present, there is no way to know what those acts might be. Simply stated, the injunction attempts to prohibit a future undescribed activity.”

The appeals court said that the chancellor's order forced the owners of Pure Passion to choose one of two actions: continue to operate their business in the same manner and risk contempt charges or limit the activities in their business. “Either choice presents risks … because there is no way to know which acts will or will not be allowed,” the court wrote.

Under the current order, the appeals court said, the owners and operators of the club could be punished “even though no court had ruled on the lewdness or obscenity of a specific act.” The court found this unacceptable under the First Amendment.

Michael Pleasants, one of the attorneys for the owners of Pure Passion, said he was “pleased” with the court's ruling on the prior-restraint issue. “The Tennessee appeals court followed long-standing precedent in declaring the injunction against future obscene and lewd acts an unconstitutional prior restraint,” he said. Pleasants says he has recommended that his clients appeal to the Tennessee Supreme Court on the appeals court's interpretation of the state prostitution law.

Sharon Curtis-Flair, public information officer for the Tennessee attorney general's office, said that “we are still studying our options in the case and have not decided yet whether to appeal the ruling.”