Justice rejects strip club owner’s request to halt NYC zoning law

Friday, June 5, 1998

The owner of a New York City strip club who has taken her challenge of the city's sex shop zoning law to the U.S. Supreme Court failed to obtain temporary relief from Supreme Court Justice Ruth Bader Ginsberg this week.

Adele Buzzetti, owner of the Cozy Cabin, challenged the zoning ordinance, which requires the vast majority of adult businesses to relocate, on First Amendment grounds.

She contends the law violates free-expression rights in part because it regulates female topless dancing but not male topless dancing. The Supreme Court has ruled that nude dancing is a form of expressive conduct that at the very least has some protection under the First Amendment. However, the high court has also uphold zoning laws that restrict the location of nude dancing establishments.

In March, the U.S. Court of Appeals for the 2nd Circuit ruled in Buzzetti v. City of New York that the law is constitutional, finding it “is not aimed at suppressing the viewpoint of female eroticism” but is a “content-neutral time, place and manner regulation.”

According to the appeals court, “public reactions to the exhibition of the female breast and the male breast are highly different.” The court reasoned that “the male chest is routinely exposed on beaches, in public sporting events and the ballet, and in general consumption magazine photography without involving any sexual suggestion. In contrast, public exposure of the female breast is rare under the conventions of our society and almost invariably conveys sexual overtones.”

Last month Buzzetti took her fight to the Supreme Court. The high court has yet to decide whether it will review the federal appeals court decision.

In the meantime, Buzzetti asked Ginsberg, the Supreme Court justice who oversees requests for emergency judicial relief in cases under the jurisdiction of the 2nd Circuit, to prevent the city from enforcing the law until after the appeals process is complete.

Ginsberg denied the request Monday. Buzzetti's attorney, Ivan Alter, said he was “disappointed” in the ruling. He said: “I had higher hopes that Justice Ginsberg, who has always been a champion of women's equality in the workplace, would grant us temporary relief. However, we will resubmit our petition to Justice Souter, as we are allowed to do under the rules. Justice Souter has written some fine opinions in First Amendment cases and we hope he will examine our constitutional arguments.”

Alter said that “if Justice Souter denies our request, and given the 2nd Circuit's decisions in our case and in the Amsterdam Video case [another challenging the zoning law], our avenues for relief will become severely limited. Needless to say, we are fighting an uphill battle. I am not holding my breath.”