Ohio appeals court dismisses adult club’s First Amendment lawsuit

Wednesday, September 23, 1998

An Ohio appeals court refused to rule whether three videotaped dance performances at an adult nightclub in Cleveland violated state obscenity law. Instead, the court dismissed the nightclub's suit, saying it was unripe for judicial review.

The owners of The Circus filed suit against the city of Cleveland and two of its police detectives in state court, asking the court to determine whether certain dance performances constituted obscenity under state law.

The owners want to offer live performances involving nudity but fear that city officials will prosecute them if they show the performances, which include “The Shower Show,” “The Bondage” and “Lotion Motion.” All of the performances involve a woman dancing nude.

The club's owners videotaped the performances in hopes of convincing the court to make a determination as to whether the dances were obscene or were constitutionally protected material under the First Amendment.

However, the city argued that the court should dismiss the case because there was no “justiciable controversy” or legal issue to resolve. As a general rule, courts will only take a case if there is an actual controversy or conflict between the litigants. Courts will not normally issue what are known as advisory opinions.

The Circus' owners argued that past prosecutions of club employees for allowing certain dances and the threat of future arrests presented the club with “the Hobson's choice of risking continued and repeated criminal prosecution of its dancers and employees or foregoing the presentation of constitutionally protected expression.”

After a trial judge dismissed the case without an opinion, the plaintiffs appealed to the state appeals court. The Ohio appeals court sided with the city, ruling that there was no genuine legal dispute between the parties.

The appeals court ruled in R.A.S. Entertainment, Inc. v. City of Cleveland that a court can dismiss such lawsuits if either there is not an actual controversy or if the “declaratory judgment will not terminate the uncertainty or controversy.”

The appeals court reasoned that even if it made a determination regarding the videotapes, it would not resolve uncertainty regarding whether other live performances were legally obscene.

“The determination whether an event is obscene or legally protected under the First Amendment is a highly content-specific question,” the court wrote. “What plaintiff sought to validate through a declaratory judgment were future performances based on three examples. The very nature of a live performance, however, makes declaratory relief as to the general legality of the nude dances improper when there is no way of knowing what form those dances would take in the future.”

The court further explained that it could not determine from a videotape whether the actual dances were legally obscene or not, because the videotaped versions of the dances contained no audience, no disc jockey and no “details of the production.”

“The courts have emphasized the importance of the circumstances surrounding a performance in an obscenity determination,” the court wrote.

J. Michael Murray, attorney for the clubs, said: “This was a disappointing decision. We felt that the fact that there were prior prosecutions and the continuing threat of future arrests certainly made the case ripe and fit for judicial review. Unfortunately, the court found otherwise.”

The city attorney who handled the case was out of town and unavailable for comment.

Murray said his clients would most likely ask the Ohio Supreme Court to consider their case.