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While working on our story on strip club regulations, one of the people I spoke with was Florida-based First Amendment lawyer Larry Walters.
Walters specializes in such cases, along with Internet and media law: I first met him when he was defending Karen Fletcher, a Donora woman who was indicted on obscenity charges for running a website that posted stories depicting sexual abuse of children.
And as it turns out, he’s previously challenged legislation very similar to the measures being proposed here in Pittsburgh by Councilor Theresa Kail-Smith. In fact, he says, the industry rarely backs down from a fight, no matter how long it takes.
Walters couldn’t predict how a court battle would play out here: He says decisions in the cases he’s seen usually run about “50/50.” But win or lose, he adds, the battle will almost certainly cost money.
“If the City of Pittsburgh moves ahead with the ordinance,” Walters says, “they’d better be ready for an expensive, long-haul battle involving over substantial and significant constitutional issues.”
For example:.
Walters himself is currently defending strip clubs in Jacksonville, Florida over regulations enacted in 2005. “It’s a real kitchen sink-type ordinance — they threwin everything you could think of,” he says.
As part of a zoning overhaul, the clubs were given five years to relocate, but there was no place inside the city where they could move. Any new location had to be approved by the sheriff, but he declined to issue any approval. In 2010 the city marked 91 spots where the clubs could move and, they ordered them to move immediately.
And while a federal appeals court has recently ruled that the clubs must move, Walters is hauling the city back in court, arguing that owners should get another five years to find a new spot since the new locations were only recently approved.
“These cases don’t move quickly,” Walters says.
In the 1990s, officials in Fulton County, Georgia enacted restrictive regulations including the sale of alcohol in strip clubs. That law was struck down in 1997 because the appeals court ruled that the county hadn’t shown that the club showed any significant secondary effects (a increasing amount of crime, for example). Another law was enacted in 2001 and then in February 2010 the appeals court ruled the county could ban alcohol.
The county won that one, though it took more than a decade.
And the stakes of losing are high, since a club owner who triumphs in court can seek damages. A judge in Seattle, for example, struck down the city’s 2005 licensing law for the second time, ruling it unconstitutional. And for the city, the cost of those defeats was steep.
Club owner Bob Davis sued the city of Seattle in 2005, which resulted in the first law being overturned. The judge in that case ruled that the city violated Davis’ First Amendment rights; he eventually settled with the city for $500,000. Then in 2008, he filed a similar lawsuit against the town of Bothell, Wa., located northeast of Seattle and received a $350,000 settlement and another $120,000 off the nearby town of Kenmore.
Last year he had Seattle’s new law struck down again. He opened his first strip club in four attempts, but the city is once again fighting to close him down.
“I’ve never lost a case,” Davis told a Seattle-based alt-weekly, The Stranger. “And I’m not settling cheap this time.”
Kail-Smith appears to be doign what she can to defuse such tensions. At Wednesday’s city council standing committee meeting, she said she’d be meeting with some club owners, in hopes of finding common ground.
Which might be the best thing, since trying to regulate women stripping off their clothes might well end up stripping the city of its cash.
This article appears in Jun 16-22, 2011.
Alright, great. Now interview a lawyer who takes the governments’ side in these cases.
I believe one of the key factors in Seattle was, it had a mayor who ran around making wild claims about how he wanted these clubs “closed down” and how they have links to organized crime which he didn’t substantiate. That spoke to intent. The X-factor in whether these laws stand or fall is, what is the demonstrated intent? We’re not taking the kitchen-sink approach.
The lawyers who take the government’s side, in Pittsburgh, will be Mr. Regan and his colleagues at the city law department.
May God show mercy for taxpayers’ wallets.
Hey Bram, thanks as always for commenting. This post wasn’t meant to be a who’s right, who’s wrong-type undertaking. Just noting that it’s an extremely expensive undertaking and I can’t imagine that any attorney would tell you different. I was just putting it out there as this process got started. Just something else to consider moving forward. Thanks again though.
Infinonymous:
Then we better hope God is truly a merciful God indeed, relative to the taxpayers’ wallets, as much of the last three years of City Council has placed the taxpayers’ wallets in a precariously vulnerable position (read: spread eagle)
Despite Bram and Kail-Smith’s denials it is pretty clear that this bill is an attempt to bankrupt the adult industry in Pittsburgh. And it absolutely takes the kitchen sink approach. Not one item of regulation that was tried elsewhere has been left out of this bill!
So why think they are trying to bankrupt the adult industry?
This can be seen first and foremost in the fact that the authors of this bill made no effort at all to include the owners of the establishments that they wanted to ‘regulate’ in the drafting. If they were concerned about taking steps to mitigate both crime and lowered property values, it seems obvious that the first step would be consultation. That this wasn’t a part of the process at all shows clearly that this is about attacking the industry, not working with it.
The second piece of evidence that makes it clear that this is just an attack on the industry is the overly broad scope of the legislation. Bram simply cries that ‘secondary effects’ justify every intrusive aspect of this legislation. In fact, the studies he cites are almost all much more cautious in their conclusion and they don’t do anything to support the most extreme restrictions. His studies fail to demonstrate that lighting requirements, registration of a dancer’s tattoos or a prohibition on all contact will lessen any of the secondary effects that he claims justify these restrictions. Indeed, he cannot even show that Pittsburgh sees any of the problems that the secondary effects studies make mention of. We don’t see prostitution originating in these establishments in this city. The crime data he supplies is vague enough to support a variety of conclusions. And the albatross about reducing disease is such a stretch that it is laughable. If we have had one case of STD transmission in Allegheny county from a simple lap dance, I would like to see the evidence. Since the incidence of such disease is recorded and monitored, it shouldn’t be so hard to find data that shows this as a problem.
He knows that saying outright that he is going to regulate these places into bankruptcy threatens to demonstrate exactly the intent that hurt Seattle’s efforts at attacking this industry. For that reason he won’t say anything quite so bold. But a review of the legislation and the data that is supposed to justify it, reveals enough holes in his argument that his claim to merely want regulation rings most hollow.
Finally, the costs!! Pittsburgh can’t afford to pave its streets. The result of this legislation will be years of court cases that will finally force the city to pay through the nose for a losing judgment. Can Pittsburgh afford that? I don’t think so. Should Pittsburgh be trying to bankrupt a tax-paying industry that employs single mothers with very few marketable skills? That doesn’t sound very smart either!
“Should Pittsburgh be trying to bankrupt a tax-paying industry that employs single mothers with very few marketable skills? That doesn’t sound very smart either!”
Larryville, I was prepared to accept your argument in summary as a rational counterargument until I read the above quote.
We shouldn’t be relegating single mothers with “no marketable skills” to drugs and prostitution. And obviously by the fact that we’re having this discussion, these single mothers must have at least one or two marketable skills, lest, why would people pay to see it?
Nor should we accept that it is only single mothers who either lack marketable skills OR enter this “industry”.
As a father, I believe in something Comedian Chris Rock said once in a stand-up routine: “As a Father, my whole job is keep my daughter off the ‘pole’, and if she starts swinging on one, I’ll know I’ve failed.”
But it is nice to finally unearth Reichbaum’s true political persuasion: Right-wing religious conservative ideologue.
Shawn,
You are right to point out that the rhetoric in my final question contained a false dilemma.
That said, I think some form of the question needs to be asked. First, if the legislation succeeds and aims at bankrupting the industry, the city will lose the tax revenue that it used to enjoy. So we might ask, ‘during this recession does it make sense to pass legislation that threatens to reduce tax receipts?’
Now we turn to the entertainers. It is true this industry is not solely populated by unskilled working mothers who will be destitute without it. But, if the legislation succeeds in bankrupting the industry or cutting significantly into profits it is the workers who will feel that pinch first. Further still, licensing requirements and the no-contact rule will put more power into the hands of club owners and less pay on the pockets of entertainers. So we might ask, ‘does it make sense to change the power imbalance in this industry to put more power in the hands of club owners and less profit in the pockets of those who, probably, need it most?’ As should be obvious by now, I think the answer to this question is ‘no’ as well.
I suspect we both agree that this choice of employment probably results from regrettable circumstances for a great many of those who pursue it. But the city is hardly in a position to change those circumstances and its ‘protective’ solutions will cut into the bottom line for most of the city’s entertainers.
Larry –
1) Reading the City Paper cover story, you will learn the clubs in San Diego for example are still very profitable despite having many/most of these rules. They insisted seat belts and air bags would bankrupt the auto industry too. Though if you wish to insist loudly that I / we are trying to shut people down, there’s really nothing we can do to quiet you.
2) I don’t know if you’re fully up to date, but the regulations have already been whittled down and will continue to be condensed. The 60 minute rule and prohibition against lighted signs are already out. I think it’s reasonable to assume some others will be condensed / fail to make the final cut. Those decisions will not be in my hands; it was my job to assemble and help prioritize the options available to us.
3) If you’re talking about legalities and costs, the only people whose opinions matter are the City’s law department, and they will not (despite Infinonymous’s aspersions) let us go heedlessly down any road that would be fiscally suicidal. It might make sense to wait for the full meeting on this to assume things.
4) I’m finally starting to understand other people’s frustrations and sense of unfairness in regards to arguing with anonymous commenters, and how many find that to be a real coward’s way to assassinate someone’s character or position.
And still I’m a glutton for punishment — Larryville as to your arguments far below: 1) Simple local data collection actually DID show markedly higher reported incidences of (only) those exact crimes which other peer-reviewed secondary effects studies and scholarship predict will show reported increases — larceny, burglary, robbery, vehicle theft, vandalism (a remarkable concurrence) — but of course you will say we can’t trust those numbers because blah blah blah. 2) As you may be aware Science has not advanced yet to the point where we can determine *how* anybody contracted any STD, but if you know much about skin-to-skin contact especially in the groinal region (or, let’s please get real, during outright sex acts conducted in private rooms outfitted with couches for maximum bodily contact, darkness and privacy) it’s not an exotic explanation for some of it. 3) Tattoo registration is a routine policing procedure for identifying past offenders, which I think would be useful in an industry that relies so heavily on wigs, stage makeup and stage names. NOW THESE ARE REALLY IMPORTANT: 4) “In either event, the city’s interest in attempting to preserve the quality of urban life is one that must be accorded high respect. Moreover, the city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” [Young vs. American Mini Theaters 427 US 50 – Supreme Court 1976] 5) “The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” [Renton vs. Playtime Theaters 475 US 41 – Supreme Court 1986] 6) All of this was cited and reaffirmed more recently for the State of Pennsylvania in Erie v. Pap’s AM, 529 US 277 – Supreme Court 2000.
Bram,
It is your choice to argue here or not. Every critique I have made of you has been framed as a reasonable conclusion that I have drawn from the evidence. You on the other hand have insinuated that I am a coward, favor the construction a red light district and enjoy face to genital contact with dancers. I would hate to see what kind of vitriol would get thrown my way if you had the ability to google my name.
You continue to conflate reasonable regulation with the kind of overboard attack that your bill includes. The fact is that San Diego and Seattle have regulation that looks very different from the regulation that has been proposed here. For instance, Seattle does not have a lap dance ban as you erroneously claim. Further, while San Diego has a buffer zone for stage dances, it allows close-up private dancing as long as no contact exists. It is these aspects that have allowed those businesses to be profitable and the Pittsburgh proposal specifically outlaws those aspects.
Your continuing insistence that the bill resembles the regulations Seattle and San Diego have imposed is false.
A closer case in point would be Kansas City. That city does have regulations that resemble these and it has led to a lawsuit and has led to the Kansas city police chief describing the law as unclear and not yet enforceable. Indeed the legal challenges to that law have now made it to the Missouri Supreme Court. This only serves to underwrite the claim, made by many here, that the city faces a huge financial and legal burden if it passes this law and then tries to defend it in court.
I will also note that it is a coalition of anti-pornography groups that crafted the law in KC. Thus the fact that this law emerges from groups like that again supports my claim that this is an attack on the industry thinly disguised as ‘regulation’.
Finally, you selectively ignore those claims in my argument that derail the narrative of regulation that you espouse.
First, why wasn’t anyone in the industry consulted about these issues and invited to the table when this regulation was being crafted?
Second, given that these measures will reduce the most profitable patron/entertainer interaction in a variety of ways, won’t the effect of these measures be felt first and foremost in the wallets of the least workers? Is that what the law aims at or is a a side effect? If it is the latter what do you think can be done to mitigate that damage?
Third, apart from trusting in the benevolent efficiency of the City’s law department why should we expect that no legal fight would result from this law? It seems to me that the city has pursued many costly legal fights over the years, what reasons can you provide for thinking this one will be different?
Bram,
We are posting at the same time and so talking past each other. This deal with the post at 4:04pm.
1. I didn’t say the crime data you posted was invalid. In other posts I said it was contentious and you agree that it is. Indeed, the City Paper notes as much and notes that the results you offer don’t have the longitudinal data needed to distinguish clubs moving into higher crime areas and areas becoming higher crime after the addition of a club. I still don’t see how your proposal aims to limit crime since moving clubs to industrial areas doesn’t strike at the heart of what you believe generates the crime -that is anonymity and easy marks. Please say how your legislation deals with this and why zoning them industrial fixes the crime problem.
2. The point about STDs only works if you believe there is active prostitution going on in these clubs. I also note that you are backing away from the position that mere lap dance contact is enough to cause it. My question is ‘why should I believe that these clubs have been centers of prostitution?’ ‘Have undercover officers made arrests for prostitution or soliciting in the City’s clubs?’ ‘Have they arrested women who work at these clubs for these crimes?’ Speculation that it must go on given the highly charged environment will not be a sufficiently strong argument to pass the ‘reasonable argument’ test you cite in 4.
3. You essentially make my point that tatoo registration is invasive here! You note that we commonly track that tattoos of criminals to aid identification. In other words you want to treat working dancers in the way that we treat criminals that we want to track. Few things are more invasive that requiring an innocent person to undergo the things we do to criminals!
4. Finally, I do not dispute your claim that this law can be made legal! I have said this before. Thus pointing to studies which allow for ‘reasonable belief’ fails to get any leverage on my point.
My point is that there is enough controversy, potential cost and overreach so as to make this law unwise!
In other words, I don’t think the STD threat is big enough to justify a ban on private contact. I don’t think the law will result in protecting the women that work in these places and threatens to undercut the power they enjoy there. I think that regardless of the legalities the city faces the very real possibility that this law will result in an expensive and protracted legal battle.
Finally I think that any attempt at regulation should be collaborative and not combative – the fact that this bill received no input from the industry makes me wonder if the real goal is to regulate these places out of existence. Reasonable belief can act as a shield for projects that are bigger than that which reasonable arguments can support. Given that this industry has traditionally been the target of exactly that tactic, and the city has just lost the CAPA appeal, this has all of the hallmarks of that tactic. This is what concerns me that most about your propsal.
I’m going to try to end it here by saying I never *never* intended to imply that you Larryville enjoy what you just described, and if I gave you or anybody else that impression I do sincerely apologize and retract. In return please try to understand that as I read it you’ve accused people repeatedly here of knowing duplicitousness and disingenuousness, all while assaulting this legislation from every conceivable angle on the entire spectrum, yet without anyone being able to make any judgment as to your specific interest if any (not that having an interest would disqualify you, but it might help to judge you as we are being judged). Finally as to your labor / breadwinning concerns, I find them relatively near to persuasive yet subscribe generally in principle with Mr. Shawn Carter’s stated counterargument. There are many other options available — one of the many of which, is being a stripper who does not perform lap dances in private rooms, at least not in this densely populated urban core with enough crime to worry about.
Haha, yes Larryville, we are talking or at least typing past each other. Since you repeated it, I’ll mention that meetings with the industry to solicit input are active and ongoing, as is for all intents and purposes the drafting of the legislation. We are taking a legislative approach that is at once transparent (like a fish tank!) and negotiative (think “haggling”, but only to an extent).