Chilling speech, Un-chilling beer

Last Friday the Sixth Circuit Court of Appeals issued this decision.

It concerns an Ohio liquor regulation (Rule 52) that bans “nudity” and “sexual activity” in alcohol-licensed establishments. As drafted, Rule 52 prohibits not only nudity in performances having literary, artistic or political value, it bans even “the exposure of any device, costume, or covering which gives the appearance of or simulates” nudity. Now that’s one broad rule. Or I think so. But then again, I’m no federal judge. Not even close.

Writing for the majority, Judge Siler held that Rule 52 is not overbroad:

Rule 52 has a minimal impact on the marketplace of ideas because persons desiring to perform mainstream works of art involving nudity and sexual activity may do so in an establishment that is not licensed to sell liquor. In the alternative, they may perform their works in an establishment licensed to sell liquor if they wear clothing or pasties and a G-string and avoid sexual conduct or sexual contact….

By its own terms, Rule 52 does not apply to contact done in furtherance of legitimate works of art for the purpose of conveying artistic meaning, such as the touching of an actor’s thigh in a play. Thus, mainstream works of art that merely suggest sexual activity will not be burdened….

While there may be legitimate artistic works that involve actors appearing in a state of nudity, ‘[b]eing in a state of nudity is not an inherently expressive condition’ that is protected by the First Amendment. Moreover, the First Amendment does not provide a right to engage in sexual activity in public. The effect of Rule 52 on legitimate artistic works is incidental and does not call for the ‘strong medicine’ of overbreadth doctrine.

Judge Cole dissented:

With respect to ordinary theater and ballet performances, concerts, and other artistic forms of entertainment, however, the Commission provides no evidence, no judicial opinion, and not even any argument to suggest that these mainstream entertainments, to which it has conceded the restrictions apply, produce the kind of adverse secondary effects that the state seeks to prevent. Because Rule 52’s ‘plainly legitimate sweep’ is extraordinarily narrow compared to the breadth of the rule, it criminalizes substantially more speech than constitutionally permissible….

So for whatever reason the county in Odle enacted the ordinance—whether it be on moral grounds or to reduce prostitution—we can assume that the county had a legitimate justification. That, of course, is irrelevant to the question of whether the ordinance sweeps within its reach a broad swath of expressive conduct not associated with the county’s identified undesirable secondary effects….

The Commission reminds us time and time again that the state has a strong interest in regulating the negative secondary effects associated with nudity and sexual activity in nude-dancing establishments. I don’t have any problem with that. But the state’s interest in regulating those effects does not explain its interest in stopping a playhouse with an alcohol permit from presenting a ballet with a brief scene simulating nudity. Maybe there is some negative effect that I am unaware of, or
maybe the Commission has some special insight in this area. Whatever the reason, no one—not the district court, not the majority, and certainly not the Commission—has brought such an interest to our attention.

(citations omitted).

Judge Cole’s closing remarks:

When the government restricts constitutionally protected speech for some legitimate purpose unrelated to the content of the speech in question, we pause for concern. When the government restricts constitutionally protected speech for some legitimate purpose relating to the content of the speech, we give it our full attention. But when the government restricts constitutionally protected speech without any justification whatsoever, loud alarm bells should sound off in our heads. Because I see Rule 52 as a regulation that fits squarely into this last category, I respectfully dissent.

(citations omitted).

I think the dissent is right on this one. Maybe there was a hanging chad, and the Clerk of Court simply miscounted the judges’ votes?


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