Meeting the Sin Laws

Chilling speech, Un-chilling beer

2008-08-20T12:53:00.019-04:00

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?

Maybe.

Express [read "pierce"] yourself

2008-08-16T11:30:00.016-04:00

Your bling is not you.

The Eleventh Circuit Court of Appeals issued an unpublished decision yesterday concerning a Brevard County "School Board written policy that prohibits the wearing of non-otic pierced jewelry by students in the Brevard County public school system." What's that, you ask? It is the county's school dress code which says:

Pierced jewelry shall be limited to the ear. Dog collars, tongue rings, wallet chains, large hair picks, chains that connect one part of the body to another, or other jewelry/accessories that pose a safety concern for the student or others shall be prohibited.

The student, who was a 16-year old 10th grade student at Viera High School when the case began, "has piercings located on her tongue, nasal septum, lip, navel and chest." She sued the school board alleging that her First Amendment right to free speech was violated by "prohibiting her from wearing jewelry in her non-otic body piercings at school." Specifically, she asserted that her piercings "were an expression of her individuality, a way of expressing her non-conformity and wild side, an expression of her openness to new ideas and her readiness to take on challenges in life." But, as the court noted, she "stated expressly that her non-compliant piercings were intended to make no religious or political statement."

That observation decided the appeal. From there the Eleventh Circuit applied Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503 (1969) to what it deemed a "content-neutral regulation of conduct that expresses no political message." Other Circuit Courts have held (here & here) that similar conduct was entitled to First Amendment protection. Here, though, when the court went ahead and assumed the conduct was protected, the dress code regulation survived the challenge (under intermediate scrutiny).

Dress-code/free-speech challenges are all about balancing. It's about bucking the system. Uniformity, anarchy and everything in between. As the not-late-great Andy Rooney once observed,

It's a funny thing about uniforms. Sometimes you find them in unexpected places. If the word 'uniform' means the same, then often young rebels fighting the system are so persistently unconventional and non-conformist that their uniform of rebellion is as identifiable as the hotel doorman's. That was certainly true of the hippies in the 1960s. They all dressed alike.

(Source). It's debatable whether uniforms improve grade-school behavior or academic performance. Some say yes, some say no. I'm unqualified to answer, although I did attend a private, preparatory school for a couple of years, i.e., junior high school. (Those were my unruly years!) I can't help but think that administrators and courts alike place too much faith in the "orderliness" that uniforms bring to youth. Maybe this is because, as any kid will tell you, uniforms affect adult behavior more than they do child behavior.

Another Georgia town celebrates closing of strip club

2008-08-11T12:17:00.004-04:00

This picture will save at least 1,000 words: "Byron City Councilman Michael Chidester applauds as the Cafe Erotica sign falls Friday morning in Byron." And another 1,000 words: "Jeff Laborg, pastor at Second Baptist Church in Warner Robins, gives a shout and waves a Bible in the air as the Cafe Erotica sign comes down Friday morning in Byron."

This is the second publicized celebration -- in as many weeks -- of a Georgia strip-club closing. The other event also concerned a club owned by the late Jerry Sullivan.

Here is the article's opener:

Many people had hoped Cafe Erotica would close, but for seven years one of its former dancers prayed for it.
Rachel Simms, who danced there for nearly four years in the late '90s, is today a happily married Christian and church volunteer. She was among the people who watched the 'We Bare All' sign come down in Friday's 'grand closing ceremony.'

(Source)

The article offends my sense of journalistic integrity. The writer has gathered no feedback about the club's positive impact on former employees and the community. Surely the club couldn't have been all bad. If the article were strictly a biographical piece on Ms. Simms, it might pass for journalism. But it's not. The article reports on the staged demolition of the Byron club, and it features video and pictures of pastors & politicians to boot. In other words, it's a news piece. And that requires objectivity, which requires good ol' elbow grease, in reporting.

Crisis averted for famous liquor license(s)

2008-08-08T12:48:00.007-04:00

The Bellini cocktail will remain a menu item at Cipriani, where the drink achieved signature status. (You'll still need $20.95 to buy one, though.)

The New York Times reports that the "State Liquor Authority voted 2 to 1 on Wednesday to accept the family’s $500,000 settlement offer, rather than revoke its liquor licenses for more than four dozen violations of state law at nine venues, including the Rainbow Room at Rockefeller Center, Harry Cipriani at the Sherry-Netherland Hotel and Cipriani Wall Street." The article says that Arrigo Cipriani pleaded guilty to a felony tax charge, which prompted the State Liquor Authority cite tax-evasion crimes as potential grounds for revoking the Cipriani company’s licenses and accused it of filing false information about its ownership.

Wow. And they say money can't buy you happiness.

Today's wine-shipping decision ...

2008-08-07T16:43:00.015-04:00

... arrives courtesy of the Seventh Circuit Court of Appeals.

In this case the plaintiffs, who are described as "oenophiles who want easier access to wine from small vineyards in other states," challenged two provisions of Indiana law. These provisions state that wineries inside and outside Indiana may ship to customers, if (a) there is one face-to-face meeting at which the buyer’s age and other particulars can be verified; and (b) the vintner is not allowed to sell to retailers in any state as its own wholesaler. The latter provision offends the Commerce Clause; the former doesn't.

Writing for the court, Chief Judge Easterbrook held:

Indiana thinks that in-person verification with photo ID helps to reduce cheating on legal rules, for both buying wine and voting (and perhaps other subjects). After the Supreme Court held in Crawford v. Marion County Election Board, 129 S. Ct. 1610 (2008), that a belief that in person verification with photo ID reduces vote fraud has enough support to withstand a challenge under the first amendment, it would be awfully hard to take judicial notice that in-person verification with photo ID has no effect on wine fraud and therefore flunks the interstate commerce clause.
Given the state of this record, and the state of the empirical literature, we know very little. What we can guess at implies that face-to-face verification will reduce the fraction of all wine shipments that go to minors, though the size of this effect is hard to estimate. Minors who can get beer locally may not want to pay for costly, upmarket wine plus shipping charges; if so (and we don’t know whether it is so), then Indiana may come to conclude that age verification for direct shipments is not vital. The cost of verification per winery rises with distance, if consumers sign up at only one winery per trip;but when traveling through wine country consumers may be able to sign up at many wineries at small incremental cost. So both the marginal cost and the marginal benefit of Indiana’s face-to-face system may be modest. That is not enough to declare a law unconstitutional—not when the effect on interstate commerce is negligible.

The challenge to the face-to-face provision came down to this:

But if what the Guild says is true, then the statute—although bad economically for Indiana’s wineries—must be sustained against a challenge under the commerce clause. Favoritism for large wineries over small wineries does not pose a constitutional problem, and the fact that all Indiana wineries are small does more to show that this law’s disparate impact cuts against in-state product than to show that Indiana has fenced out wine from other jurisdictions.

But is there a crack in the dam for wholesalers?

Pike asks whether the putative local benefits could possibly justify the burden on interstate commerce. All the wholesalers can muster in support of the statute is that the three tier system may help a state collect taxes and monitor the distribution of alcoholic beverages, because there are fewer wholesalers than there are retailers, so state enforcement efforts can focus on the middle layer. That may be so, see Granholm, 544 U.S. at 489 (stating in dictum that the three-tier system is compatible with the dormant commerce clause), but once a state allows any direct shipment it has agreed that the wholesaler may be bypassed. It is no harder to collect Indiana’s taxes from a California winery that sells to California retailers than from one that does not. The wholesale clause protects Indiana’s wholesalers at the expense of Indiana’s consumers and out-of-state wineries.

Don't hand your local wholesaler a life jacket just yet. I've seen wholesalers up close, and they'll be captaining the ferries for a while.

My question for now: What's an oenophile?

Reverse Flow

2008-08-07T09:06:00.005-04:00

"City owes $85,000 for pulling strip club's licence," reports TheSpec.com. According to the article, "[t]he city's licensing committee pulled the defunct strip club's licence in July 2006 because of inactivity. The decision, which was upheld by council, quashed plans to reopen the strip joint. At the time, the move was celebrated by councillors as a 'breakthrough' because it dropped the number of adult entertainment licences to two, down from eight a decade ago."

To the (Canadian) City's credit, it has recognized the constitutional violation and accepted responsibility:

"We didn't give her due process," said Tim McCabe, general manager of planning
and economic development. "You've got to be fair."
He said the employees who made the mistake no longer work for the city, as they were let go in the overhaul of the beleaguered licensing department. The city has new protocols to ensure the same mistake doesn't happen again, he added.
Councillor Sam Merulla, who chaired the licensing committee when the licence was revoked, said the only good news in the court decision is that the old staff are gone. The bad news is city taxpayers are still paying for their mistakes.
The court awarded Owen $85,000 in damages.

In the U.S., a city would spend another $85K appealing the decision sideways.

Another town buys an adult business

2008-08-01T09:44:00.005-04:00

They're all the rage these days.

"A small town in northeast Georgia has bought a strip club, but it's not planning to get into the adult entertainment business," reports MSNBC.com here.

The town of Lavonia is not alone; other cities have taken the plunge.

The Sound of Silence

2008-07-20T10:03:00.007-04:00

Your application to plop an adult bookstore in our town's commercial shopping center is hereby ...

Dennis Loring filed a "site plan application seeking to locate an adult, sexually oriented book and video store in a shopping plaza in North Haven." The commission said no. The trial court said yes. And now the Connecticut Supreme Court says ... Yes (majority) with a no (dissent).

The issue: whether Mr. Loring's proposed accessory use of 15 "video preview booths" is "customarily incidental" to his proposed primary use of an adult book and video store, "and hence a valid accessory use." The supreme court said it was an accessory use, and for this reason, the application should have been granted.

One highlight from the opinion. At the hearing before the commission, the attorney for the proposed store, Dan Silver, detailed why "preview booths" were an accessory use to adult video stores. Mr. Silver based his statements on, among other sources, his 35 years of representing adult businesses. He offered to testify under oath if the commission deemed it necessary. But the commission was silent, with 2 members more or less agreeing that Mr. Silver's statements about accessory use were accurate. The commission still denied the application. [Full disclosure: I know Dan Silver and consider him a friend.]

On appeal, the trial court accepted Mr. Silver's representations and proffer as fact because the town did not object to, much less contradict, his statements. As any attorney who's read his or her words in a court transcript can attest, you -- the attorney -- can be hanged on your words. Yes indeed. The court will rule against your adult entertainment client while quoting your words as the "fact" supporting its decision. It's not often, though, that you see the court go the other way: using the government's lack of words (or evidence) to overturn an administrative decision. It seems like the right result here:

[I]f the commission members intended to disregard Silver’s expert testimony because of some special knowledge they had regarding what is customary for adult book and video stores, they should have stated the basis of their opinion on the record to allow the plaintiff an opportunity to rebut that evidence. Because it was undisputed that there were no other adult book and video stores then or previously operating in town and there is no evidence in the record to suggest that commission members had any personal knowledge of such businesses outside of the town, we reasonably cannot conclude that the commission members based their conclusions on personal knowledge. (internal citation omitted).

It's an interesting opinion because it applies settled law to undisputed facts -- and still generates a dissent.

Now that's [adult] entertainment!

Have you left your bag of firearms unattended?

2008-07-04T11:22:00.018-04:00

Happy July 4th!!

Are you flying over the holiday? If you're passing through Atlanta's Hartsfield-Jackson Int'l Airport, you'll need to leave your "arms" at home. For now at least. Sound ridiculous? To GeorgiaCarry.Org, Inc. and Georgia Representative Timothy Bearden (R - Villa Rica) it does. So the organization and Mr. Bearden have sued the airport, the City of Atlanta, the mayor, and the city's general aviation manager (Benjamin DeCosta). The allegations? According to the complaint:

Until July 1, 2008, O .C .G.A. § 16-12-122 through § 16-12-127 generally prohibited carrying a firearm in the Airport, with a penalty of up to 20 years in prison and a $15,000 fine .

Beginning July 1, 2008, the law in Georgia was changed by House Bill 89, an act of the General Assembly signed by the Governor, permitting people to whom a Georgia firearms license ("GFL") has been issued to carry a firearm in"public transportation," notwithstanding the provisions of O .C .G .A. § 16-12-122 through § 16-12-127.

From the complaint we learn that Mr. Bearden is the author of HB 89, and, apparently, he has exchanged words with Mr. DeCosta via the Atlanta Journal Constitution. I'm not sure whether carrying a gun in the airport is vital to Mr. Bearden's way of life. Maybe it doesn't matter, legally speaking. In the complaint he alleges:

Plaintiff Bearden is a visitor and user of the Airport facilities . He would like to exercise his right to carry a firearm while in the nonsterile areas of the Airport, but he is in fear of detention, search, arrest, and prosecution for doing so.

Plaintiff Bearden intended to visit the Airport on July 1, 2008 while legally armed, but he was deterred from doing so by Defendant DeCosta's specifically targeting Plaintiff Bearden for arrest.

True, everyone who goes to the airport is not a passenger. I've done business meetings at skymile clubs, picked up (and dropped off) hundreds of guests, friends and family, and I've even gone to the airport just to watch the airplanes. Nerd alert. Still, this is a pretty volatile location to launch a Second Amendment challenge. The guts of the complaint:

O.C.G.A. § 16-11-173 expressly prohibits Defendants from regulating the carrying of firearms "in any manner."

The Second Amendment to the Constitution of the United States guarantees an individual right to keep and bear arms.

The Militia Clause of the Constitution of the United States provides that Congress shall have the power to "provide for organizing, arming, and disciplining the Militia...."

The "Militia" as used in the Militia Clause means all able bodied men.
The individual right to bear arms existed at common law prior to the passage of the Second Amendment.

It's a Militia Clause and a Second Amendment "right to bear arms" case. With a smattering of state-law preemption. For all things "DC v. Heller," check out SCOTUSblog's Wiki on the case. There you can read GeorgiaCarry.Org, Inc.'s amicus brief, authored by the same attorney who filed this test case.

What else has Mr. Bearden sponsored? HB 21 (attempting to make "English" the official language of Georgia), HB 126 (attempting to tweak criminal procedure to provide that a verdict in a felony case, other than a case involving the death penalty, shall be agreed to by at least 11 of the 12 jurors), HB 640 (attempting to protect state flags and other "commemorative symbols"), and HB 1204 (attempting to create crime of feticide by drug ingestion). None passed.

A couple of Mr. Bearden's Resolutions that did pass: House Resolutions 1117 and 1291. Both relate to cheerleading, the latter: ("NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES that the members of this body commend the University of West Georgia All-Girl Cheerleading Team on their dominating win of the Division II All-Girl Cheerleading Competition and invite them to appear before this body on a date and at a time designated by the Speaker of the House for the purposes of being recognized by the House and receiving an appropriate copy of this resolution.")

I wonder if these cheerleaders traveled to the State Capitol via MARTA (Atlanta's public transportation system). The Georgia Secretary of State's Web site encourages teachers to use MARTA for student field-trips to the State Capitol. I know that Georgia's schools are weapons-free zones, but, thanks to Mr. Bearden's leadership, MARTA is not.

*Afterthought: As I've said before, I know little about the empirical studies analyzing the relationship between gun violence and gun control. I'm more than unqualified to take a reasoned stance on the issue. I also believe -- again, I don't know -- that most persons who apply for (and obtain) a permit to own a firearm have nothing but protectionism in mind when they do so. They're good people! But a gun is still dynamite. And, in certain settings, sparks abound.

Are obscenity prosecutions on the rise?

2008-06-23T22:36:00.013-04:00

Maybe. Or maybe not.

"What’s Obscene? Google Could Have an Answer" appears in tomorrow's edition of The New York Times. The question is whether Internet data --- specifically, Google search results --- may be used at trial to gauge "community standards," whatever that means. The article quotes two talented attorneys (disclaimer: I consider them friends), Larry Walters and Jeffrey Douglas. A glimpse:

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm.

Another capable and talented attorney, Marc Randazza, has suggested this as well. So what's all the fuss over the Internet? Better yet, what is the Internet? According to HowStuffWorks.com, it's "a gigantic collection of millions of computers, all linked together on a computer network." In that network "a home computer may be linked to the Internet using a phone-line modem, DSL or cable modem that talks to an Internet service provider (ISP)." These "ISPs then connect to larger ISPs, and the largest ISPs maintain fiber-optic 'backbones' for an entire nation or region. Backbones around the world are connected through fiber-optic lines, undersea cables or satellite links (see An Atlas of Cyberspaces for some interesting backbone maps). The end result: "every computer on the Internet is connected to every other computer on the Internet." [Source]

It seems to me that, if the government takes a 21st-century view that a web of fiber-optic backbones, with their hallways of bouncing light pulses (when descrambled and assimilated by an end-user), can throw someone in jail depending on what story emerges on transmission to a consenting adult, then maybe that someone ought not lose the right to show that others, too, see the light. The World might not think it a prurient thing. Whatever that means.

(HT: HowStuffWorks.com)

Georgia's wine sales to go online

2008-06-09T13:55:00.006-04:00

Georgia winemakers want your home address and (unexpired) MasterCard number.

The Atlanta Journal Constitution reports here that, "[s]tarting July 1, Georgia residents can have any winery ship to them up to 12 cases a year as long as someone 21 or older signs for the shipment." Awesome! Because shipments to the front door were previously off-limits, leaving hard-to-find bottles and wines not represented by local distributors out of reach, this measure is sure to help Georgia's upstart wineries. Yes, that's right -- Georgia has wineries. Here are the ones mentioned in the article:

Says the co-owner of Persimmon Creek Vineyards, Mary Ann Hardman, "I think Thomas Jefferson would be quite thrilled with the passage of this law, as he had wines from Chateau Rausan-Segla and Chateau d'Yquem shipped directly to him as president and then in his retirement at Monticello. He even had a muscadine from North Carolina shipped directly to his Palladian-framed doorstep." I'm not sure how TJ would have felt about online wine shipping, but I know that the Christian Coalition is not opposing this bill, as it did the proposed Sunday Sales legislation. That's according to this article from BeverageWorld.

I've written about Georgia's regulation of online wine sales for The Hudspeth Report.

Borderless Bookstore

2008-06-08T19:01:00.009-04:00

I like happily-ever-afters.

In West Chester, Pennsylvania, the "St. Agnes Church has dropped its challenge to a zoning hearing board decision involving Feminique Boutique, a sex novelty shop near the church," reports the DailyLocal.com here. Why? Well, we can only guess, but there is no definition for what the store is (i.e., an adult novelty store) in the borough's code; so there was no restriction on the store's locating where it did. The store sells "lingerie and body oils as well as racier items in a back room."

According to the article, the store's owner, Jill McDevitt, "has a bachelor’s degree in sexuality, marriage and family," and "originally wanted to be a high school English teacher" before founding her boutique. (While pursuing a psychology degree at East Stroudsburg University, she wrote a sex column in the student paper. It sounds like she's an educator, a savvy marketer, and, unlike the church -- at least initially -- a reader of the law.) Anyway, when the uproar began, hundreds signed a petition at the boutique supporting the store's plight.

It worked. Then again, Ms. McDevitt's store is no BadaBing.

Slots & Sovereignty

2008-06-04T11:51:00.007-04:00

It's a video poker case.

Over at SCOTUSblog, they're betting that that it is taken up by the Supreme Court. I won't (meaning, I can't) handicap the odds. The case concerns Jimmy Martin and his company, Lucky Strike, which have sought to enjoin enforcement of two South Carolina statutes criminalizing certain "device[s] pertaining to games of chance." The district court declined to hear the case, dismissing the federal constitutional challenges to the two South Carolina statutes regulating video poker, on the ground that Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943), mandated abstention. The Fourth Circuit Court of Appeals reversed. "Because resolution of these challenges neither requires a court to adjudicate difficult questions of state law, nor disrupts state efforts to establish through a complex regulatory process a coherent policy on a matter of substantial public concern," the court of appeals held, "this case falls well outside the narrow category of cases to which Burford abstention may apply." But that's only 2/3 of the story.

Judge Wilkinson dissented. He wrote:

My friends in the majority ... refuse to allow the state courts to undertake the delicate task of distinguishing between lawful and unlawful games. Because South Carolina's gaming statutes justifiably call for a machine-by-machine determination of legality, the majority's notion that it somehow can interpret "games of chance" in bulk, without disrupting South Carolina's enforcement scheme, rides roughshod over the scheme itself and the principles of federalism it purports to observe.

This clash over what federalism requires, or what it does not allow, reminds me of a case I blogged on earlier. Both cases concern preliminary, federal court decisions on state regulatory matters. Both are also superb pieces of writing, IMveryHO.

It's been said that a good lawyer knows the law, while a great lawyer knows what the law will be (i.e., meaning, sometimes, that the lawyer knows the judge). Great, good or just plain average, I bet that this case doesn't get snatched.

Dem is fight'n words

2008-05-14T12:29:00.002-04:00

This free-speech lawsuit requires us to determine the present scope of the “fighting words”doctrine. The setting is a neighborhood feud. The case features an unsightly, 38-foot recreational vehicle stored on a residential driveway in suburban Chicago, a neighborhood petition drive to force its removal, and a derogatory Halloween yard display erected in retaliation against the neighbors who led the petition drive.

begins this opinion from the Seventh Circuit Court of Appeals. In the end, the court holds that the display was, in fact, protected by the First Amendment. But that finding (or holding or dicta) was academic, as the police officer had every right to act on the ruckus which ensued. It's a good read.

Alcohol & Big Business

2008-05-11T21:48:00.004-04:00

"Michael Cortez never dreamed he'd be heading to the highest court in the state over a six-pack of beer. But the vice president and general counsel for Sheetz Inc. will do just that Wednesday when his central Pennsylvania convenience-store chain appears before the Supreme Court to resolve a dispute over where beer can be sold in the state." The Philadelphia Inquirer reports here (thanks How Appealing).

If you adopt silly laws that hurt someone's business, you encourage silly behavior to save someone's business. It's that simple. Of course, it depends on your vantage point. Silly laws are sometimes adopted to help someone's business.

The only thing we have to fear, is beer itself ...

2008-04-14T15:59:00.004-04:00

... and not one State's attempt to jack-up the tax on it -- or says Orin Kerr of The Volokh Conspiracy here. A California assemblyman, Jim Beall, has "proposed raising the beer tax by $1.80 per six-pack, or 30 cents per can or bottle. The current tax is 2 cents per can. That's an increase of about 1,500 percent," according to MercuryNews.com here.

But is this proposed tax constitutional? I say, obviously not. The tax would be blatantly unconstitutional under the Due Process clause, the 21st Amendment, the 8th Amendment, the Privileges & Immunities clause, and the Dormant Commerce Clause. Recall that the time of the Framing of the Constitution, Benjamin Franklin accurately captured the American approach to beer when he stated that "Beer is
proof that God loves us and wants us to be happy." And was not Samuel Adams both a brewer and a patriot, I ask you?

I've visited Sam Adams grave in Boston. I'm not sure why. I think it's on the Freedom Trail or something. The grave is pretty nondescript, really. But I think you'd hear some rumbling were you to read aloud this legislation while standing atop it.

Milwaukee's Best Light -- $3.79 for a 16 oz. six-pack!

2008-04-02T21:12:00.007-04:00

"A federal judge has overturned Virginia's decades-old ban on alcohol-related advertising in college newspapers, saying that the law violates the student publications' constitutional right to free speech," reports AP in the Washington Post here. Most alcohol-advertising bans are sitting ducks for constitutional challenge if they're (threatned to be) enforced because there's typically little (if any) evidence supporting the speech ban. Thing is, many revenue agents and others tasked with enforcing alcoholic beverage laws know this and, wisely, choose to let these advertising restrictions collect dust. Most of time, at least.

Just my $.02.

Bang

2008-03-29T08:14:00.007-04:00

"Guns, Fear, the Constitution, and the Public's Health," written by Garen J. Wintemute, M.D., M.P.H., will appear in the April 3 edition of the New England Journal of Medicine. (HT to You Don't Say.)

Dr. Wintemute notes that "the $2 billion annual costs of medical care for the victims of gun violence are dwarfed by an estimated overall economic burden, including both material and intangible costs, of $100 billion." (footnote omitted). So "[i]t's unlikely that health care professionals will soon prevent a greater proportion of shooting victims from dying; rather, we as a society must prevent shootings from occurring in the first place." Ain't that the truth.

Because I don't know anything about gun violence statistics or prevention, I'm eminently qualified to comment. So here goes: There's big money in guns. Period. End of story. Finito. Before there were guns, people did not kill people with guns. Before guns no one feared death by gun. That was then, of course. Today people own (hand)guns, in large part, because they fear death (by handgun). But,

Gun violence is often an unintended consequence of gun ownership. Americans have purchased millions of guns, predominantly handguns, believing that having a gun at home makes them safer. In fact, handgun purchasers substantially increase their risk of a violent death. This increase begins the moment the gun is acquired — suicide is the leading cause of death among handgun owners in the first year after purchase — and lasts for years.

Dr. Wintemute takes issue with state legislatures deregulating gun use. He says that relaxed regulations are founded on myths:

One is that increasing gun ownership decreases crime rates — a position that has been discredited. Gun ownership and gun violence rise and fall together. Another myth is that defensive gun use is very common. The most widely quoted estimate, 2.5 million occurrences a year, is too high by a factor of 10.

Policies limiting gun ownership and use have positive effects, whether those limits affect high-risk guns such as assault weapons or Saturday night specials, high-risk persons such as those who have been convicted of violent misdemeanors, or high-risk venues such as gun shows. New York and Chicago, which have long restricted handgun ownership and use, had fewer homicides in 2007 than at any other time since the early 1960s. Conversely, policies that encourage the use of guns have been ineffective in deterring violence. Permissive policies regarding carrying guns have not reduced crime rates, and permissive states generally have higher rates of gun-related deaths than others do.

I'm all for approaching a long-running debate from a new angle. It can break the stalemate. Entrenched special interest groups are superb at framing the issue in a way that places their agenda in the best light. But what about the rest of us? Maybe the combination of medicine & money -- commodities that we all fear losing -- will shift this debate.

E-wine & ID

2008-03-21T00:17:00.013-04:00

An interesting decision concerning Wine.com which you can access here (eVineyard Retail Sales-Massachusetts, Inc. vs. Alcoholic Bev. Control Comm'n, SJC-09948 March 18, 2008).

One of the vinous Internet giant's wholly owned subsidiaries, eVineyard Retails Sales-Massachusetts, Inc. (eVineyard), got snagged for delivering -- errr ... selling -- wine to an underage person. The facts are simple. For whatever reason, the Massachusetts Attorney General's Office ran a sting using an underage female (19 yrs. old) to order wine from Wine.com. To place her order, the underage woman opened an account with eVineyard, submitting her name, address, and a fictitious date of birth, which indicated that she was 22 years of age. Well, her order

was processed by eVineyard, and delivered to her by Federal Express, with whom eVineyard contracts for the delivery of all of its orders. In the contract, Federal Express agreed to deliver wine orders to customers in compliance with certain age verification requirements. eVineyard paid Federal Express an extra two dollars per delivery for its carriers to check identification and verify that each recipient is twenty-one years of age or older. eVineyard places labels on its packages informing the carrier that the packages contain alcohol and that a driver should not deliver the package to anyone under twenty-one years of age or visibly intoxicated, and that, if reasonable doubt about age exists, the driver should verify age and record the recipient's driver's license number or other identification. Federal Express also requires that certain labels be used on packages containing alcohol. Federal Express delivered the wine, in this case, to the underage CI without asking for identification or proof of age.

So, following 2 stings, eVineyard ultimately suffers a pair of modest alcohol-license suspensions, while FedEx escapes unscathed on one of those stings. Quite understandably, and in an homage to stare decisis, eVineyard appealed the ruling. It raised three arguments: mootness, statutory interpretation, and entrapment. They're all interesting defenses.

Regarding mootness, eVineyard argued that the license suspension targeted a 2004 alcohol license, and, by 2007, that train had left the station. (The state issues alcohol licenses annually, meaning that the license is good for one year only.) eVineyard applied for a "new" license in 2007, and reasoned that any adverse action against the 2004 license was disconnected to the 2007 license. I like the argument because, where I practice, the State frequently reminds its license holders that they enjoy no vested right in the renewal of those licenses. In other words, you can't claim a property right that extends beyond the year in which the license is issued. I say what's good for the goose.... If you don't get the benefit of an alcohol license in perpetuity, then you shouldn't suffer the detriment of an expired alcohol license in perpetuity: 1 year means 1 year, and, here, Massachusetts targeted 2004 -- not 2007.

Regarding the statutory argument, the Court held:

The plain language of the statute is unambiguous: it forbids both the sale and the delivery of alcohol to minors. The commission's interpretation of the statute as allowing it to proceed separately against both the licensed seller of alcohol, eVineyard, and the licensed deliverer, Federal Express, accords with the statute's language and with its legislative intent.

Regarding the entrapment argument:

eVineyard contends that the sting operation at issue resulted in its first offense, and that there was no evidence that it had a predisposition to sell to minors. It also argues that the CI wrongfully misrepresented her age on the eVineyard Web site, in violation of the commission's investigative guidelines that prohibit decoys from lying about their age. We reject these arguments.

To raise an entrapment defense properly, eVineyard must produce evidence of government inducement. Solicitation by a government agent alone is insufficient to show inducement. (cits omitted.)

Moreover, even if we were to reach the issue of predisposition, we agree with the commission that in the absence of a scienter requirement in the statutes, the "question is not whether eVineyard was predisposed to sell alcohol to persons whom it knew to be underage, but whether eVineyard's [Internet] practices evidenced a willingness to sell alcohol in a manner that could allow minors to make purchases by the simple expedience of misrepresenting their age."
Finally, the operation was conducted by the Attorney General's office in compliance with its own guidelines for sting operations concerning Internet alcohol sales to minors. These guidelines allow decoys to misrepresent their age when ordering alcohol via the Internet, but prevent them from transmitting by facsimile or otherwise providing false identification documents to an Internet retailer. The commission's on-premises guidelines are inapplicable to remote, Internet-based, sting operations, particularly when conducted by the Attorney General's office.

I'm guessing that it's first-day training for FedEx's in-house counsel to reread Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854), a relic contract case taught at most law schools. They'll be reading this case, too.

Religion & Poles

2008-03-18T22:36:00.004-04:00

(Source.) A follow-up to my post below. The picture is entitled, you guessed it, "Peep Show."

Now that just ain't right.

Politics & Poles

2008-03-18T21:12:00.005-04:00

This month Harper's Magazine is featuring Mr. Fish, 178 Cartoons from 2004 to 2008. Mr. Fish, we're told, "lives in Los Angeles, California. He never asked to be born. Occasionally, he laughs his head off. His mother has no idea what he's up to. She cries easily. For more information, date him." He sounds bipolar, but I'm not willing to date him to confirm.

I'm sure that, within a 1,000 or so words, someone could offer some clever comment capturing the impact of this cartoon. Not me. I'll defer to the caption (too small to read), which says "According to the most recent poll."

That's not why people go into politics, is it?

Percy L. Julian, Jr., Esq.

2008-03-02T10:48:00.003-05:00

"The legal community — particularly the First Amendment field — lost a giant recently in Wisconsin-based civil rights attorney Percy L. Julian Jr., who died Feb. 24 in Madison at age 67," laments David L. Hudson, Jr. of the First Amendment Center here. I considered Percy a friend, and the comments offered by Jeff Scott Olson and H. Louis Sirkin in the article are spot on: Percy was a talented lawyer, and an extraordinary gentlemen. In a sad coincidence, I e-mailed Percy last week, picking his brain about recovering attorney's fees under 42 U.S.C. Sec. 1988. (Percy has always taken time to educate -- and console -- me.)

Now I know why my friend did not respond.

Stuff

2008-02-23T21:58:00.004-05:00

"Breasts are not genitalia, and drivers don't gawk at the word 'love' — a First Amendment problem," is the title of an Althouse post. In case you're wondering, the buttocks is not genitalia either, although some have believed it so.

"Millions May Be at Stake in Suit Over Hit NBC Game Show" appears in a Law.com article, which begins:

Text messages, cell phones, TV game shows, Howie Mandel -- none of these could have been contemplated by Georgia's colonial lawmakers when they first passed a law allowing gamblers to recover their losses through lawsuits.

The current version of the law, found at Office of Contract and Grant Administration §13-8-3, is at the center of a case against NBC Universal and the producer of Mandel's hit show, "Deal or No Deal," to be heard Tuesday before the state Supreme Court."

Strip-club mogul remains an enigma," appears in tomorrow's edition of the Atlanta Journal Constitution. It's about Jack Galardi:

Welcome to Galardi Nation, a smoky, windowless empire that stretches like a plus-size G-string from Nevada to Florida to the Carolinas, at times numbering two dozen clubs. Five operate in metro Atlanta, including the just-opened Pink Pony South, in Forest Park, with its two-tier showroom and upstairs sushi bar.

While his dancers are on full display, the 76-year-old Galardi remains one of the most successful and controversial local moguls you've likely never heard of.

My firm has represented Mr. Galardi's interests over the years; I'm a fan. It's a nice article.

Texas sexual device ban held unconstitutional

2008-02-13T09:20:00.003-05:00

The Fifth Circuit Court of Appeals just reviewed Texas's obscenity statute, and here's how the opinion begins:

This case assesses the constitutionality of a Texas statute making it a crime to promote or sell sexual devices. The district court upheld the statute’s constitutionality and granted the State’s motion to dismiss for failure to state a claim. We reverse the judgment and hold that the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution.

It's recognized that, in constitutional law, the answer often depends on how the question is framed. In this case the questions were posed this way:

Plaintiffs claim that the right at stake is the individual’s substantive due process right to engage in private intimate conduct free from government intrusion. The State proposes a different right for the Plaintiffs: 'the right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.'

It looks like the court of appeals didn't like the State's picture, and it didn't buy the frame.

Liberty 1, Absurd Legislation 0.

Georgia law continues to honor the Sabbath

2008-02-12T12:06:00.000-05:00

"Despite public sentiment, Sundays likely to stay dry for now," is an article which appears in today's Atlanta Journal Constitution. If you haven't heard, Georgia is contemplating (again) a Sunday sales bill that would allow communities to decide whether they want to allow beer, wine and liquor retail package sales on Sundays. (Georgia is one of three states that ban Sunday sales of alcoholic beverages at stores, i.e., you can purchase a beer for consumption on the premises of a restaurant on Sunday, but you cannot purchase a six-pack from a grocery store that day.)

So what's the deal? According to the article,

Two-thirds of Georgians who answered a recent poll said they want the right to vote on allowing stores to sell beer, wine and booze on Sunday.

A free-market Republican caucus that includes several state Senate leaders calls the Sunday sales vote a "no-brainer."
...
However, religious conservatives have strongly opposed such sales, saying alcohol shouldn't be peddled on the Christian sabbath. Some liquor store owners, including those with political connections to Gov. Sonny Perdue and Cagle, have also opposed the idea. Liquor store opponents don't want the expense of being open on Sundays just so grocery and convenience stores can make more sales.

What a political laugh-off. The alliances and competing interests here remind me of the "wine shipping" cases. It's a sabbath/commerce split. On the one (invisible) hand, you've got the "free-market Republican" who wants to supply a product to serve a demand. On the other (clasped) hand, you've got the "born-again evangelical," who is often a Republican, who does not want to blemish the Sabbath.

No matter how arcaine or abstract the theory, I've been taught, "Don't check-in your common sense at the door." Opponents of the Sunday sales bill have one theory: It just doesn't feel right to offer package sales on Sundays. That's it. To support that theory requires reading scripture. Respectfully, those wishing to honor the Sabbath (by banning retail alcohol sales on Sundays) have left their common sense at the door, and they're floating various theories -- secular, mind you -- to justify the prohibition.

Am I missing something? Or do Georgia's Sunday sales opponents fund NASCAR Sundays, which are brought to you by All Things beer and Viagra?

Virginia Beach police seize photos from Abercrombie store

2008-02-03T12:06:00.000-05:00

If I didn't know Virginia Beach, I'd have guessed this was a publicity stunt. But it's not. According to the article from Hampton Road's PilotOnline.com (via The Drudge Report),

Police, saying they were responding to citizen complaints, carted away two large promotional photographs from the Abercrombie & Fitch store in Lynnhaven Mall on Saturday and cited the manager on obscenity charges.
Adam Bernstein, a police spokesman, said the seizure and the issuance of the summons came only after store management had not heeded warnings to remove the images.
The citation was issued under City Code Section 22.31, Bernstein said, which makes it a crime to display "obscene materials in a business that is open to juveniles." He did not say what was being done with the pictures and when the manager, whose name was not released, is scheduled to appear in court.
...
Bernstein confirmed that one depicts three shirtless young men from the back, walking through a field. The man in the lead appears to be about to pull up his jeans, which have slipped down enough to reveal his upper buttocks.

Few (maybe no one, if they're rational) would disagree that children are off-limits when it comes to pornography production. That's not up for debate. That prohibition, however, doesn't seem to fit this scenario. The ad does not involve children, and it does not involve pornography. (In no legal sense is the ad obscene.) I think that Virgina Beach's ordinance, though entitled "Display of obscene materials at business establishments open to juveniles," aims to ban sexually explicit displays in the presence of children. Let the debate ensue.

I like what you're saying, so I won't zone you out.

2008-02-01T12:55:00.000-05:00

Over at The Volokh Conspiracy Ilya Somin has posted that Berkeley is "considering enacting a zoning ordinance to restrict [military recruiters'] location[s] in much the same way as other cities use zoning to restrict or ban businesses selling pornography." He writes:

Conservatives are justifiably outraged by the proposed Berkeley measure. I share their indignation. However, it is striking that advocates of the Berkeley measure use most of the same arguments for it as many conservatives use to justify zoning out adult businesses and other enterprises they disapprove of.

For example, the Berkeleyites claim that the measure is justified on the basis of community morality in Berkeley, where much of the very left-wing population finds military recruiters offensive. As Berkeley Councilmember Dona Spring puts it, "I do want to do something, whatever we can do, to shut down an agency that offends our public standards." Conservatives similarly argue that local communities that find adult businesses offensive should be able to ban them for that reason. If conservative local majorities should be able to use zoning law to enforce their moral values, why shouldn't the left-wing local majority in Berkeley be able to do the same thing?
...
[T]hey should not use the heavy hand of government to force out enterprises merely because they find them offensive. Zoning might be able to play a valuable role in providing certain local public goods and in restricting businesses that cause genuinely severe harm to their neighbors. But mere community disapproval - whether by the right or the left - should not be enough to justify such restrictions.

I so agree. I notice, though, that the proposed zoning ban would apply to both government and private military recruiting offices. Certainly the zoning measure is flawed as it applies to private recruiters. And it lacks no better basis when it comes to government recruiters. I'm curious to hear how a local or state actor restricts the speech of a federal actor. Interesting stuff!

Everything is new(d) again

2008-01-31T11:47:00.001-05:00

I've been working and playing.

My playtime has been with our first baby, Ms. Audrey Jane Wiggins. She's a hoot. Born on January 8, she's been a non-stop machine, keeping her parents (especially mom) busy changing, feeding, rocking, gazing and laughing. I love it when Audrey smiles, even if the grin's just a "gas release," as I'm told.

My worktime has been conducting year-end office adjustments and of course litigation. 2008 is going to be great! We're revamping some in-house systems, and going to take the changes to our clients (and opposing counsel) soon.

For now, an article appears in today's NYT entitled, "A Befuddlement of Liquor Laws" by Eric Asimov.

The laws governing direct interstate shipments from wine retailers to consumers are confusing, arcane, inconsistent, often ignored and rarely discussed. The topic comes up now because of the efforts of one online wine merchant, Wine.com, to squelch fellow merchants it suspected of breaking the laws by which it says it was abiding.
In what amounted to its own sting operation, Wine.com last summer ordered wine from several retail merchants and asked them to ship it to states where such shipments are illegal. Upon receiving the wine, Wine.com then sent letters to state regulators turning in the transgressors.

I can't say that I blame Wine.com for tattling, even if they're the narc that spoils the transcontinental party. Some of the alcohol laws governing the three-tier system (i.e., separating retailers, distributors and manufacturers) amount to economic protectionism, but if Wine.com plays by the rules, shouldn't its competitors? [Insert joke here.]

Another good article, entitled "Sex Sells," appeared in The Economist this week. It happens that the American Economic Association just participated in a gathering of social scientists in New Orleans to discuss, among other riveting topics, sex.

The star attraction there was Steven Levitt, an economics professor at the University of Chicago and co-author of “Freakonomics”, a best-selling book. Mr Levitt presented preliminary findings* from a study conducted with Sudhir Venkatesh, a sociologist at Columbia University. Their research on the economics of street prostitution combines official arrest records with data on 2,200 “tricks” (transactions), collected by Mr Venkatesh in co-operation with sex workers in three Chicago districts.

The results are fascinating. Almost half of the city's arrests for prostitution take place in just 0.3% of its street corners. The industry is concentrated in so few locations because prostitutes and their clients need to be able to find each other. Earnings are high compared with other jobs. Sex workers receive $25-30 per hour, roughly four times what they could expect outside prostitution. Yet this wage premium seems paltry considering the stigma and inherent risks. Sex without a condom is the norm, so the possibility of contracting a sexually transmitted infection (STI) is high. Mr Levitt reckons that sex workers can expect to be violently assaulted once a month. The risk of legal action is low. Prostitutes are more likely to have sex with a police
officer than to be arrested by one.

Another finding, described as "controversial," is that "prostitutes do better with pimps—they work fewer hours and are less likely to be arrested by the police or preyed on by gang members." This perhaps counterintuitive fact occurs, according to one paper, because "pimps pay above the minimum rate required by sex workers in order to attract, retain and motivate the best staff." If you forget (for the moment) that prostitution is outlawed many places, then the scenario makes sense. If you ask me, the laws of business forge the laws of morality; not the other way around. It's kinda like paving the sidewalk where the footpath develops.

A few other interesting links (courtesy of How Appealing):

Judge won't supress statements by suspect in obscenity case

I guess that sinning & winning don't go hand-in-hand.

"Rumrunners, Moonshiners and Bootleggers" is ...

2007-12-08T13:28:00.000-05:00

... the name of The History Channel program that I just watched. The promo:

Heroes who fight tax collectors and moral crusaders, or just common criminals? Like it or not, America was built by rumrunners, moonshiners, and bootleggers--even founding father John Hancock was a smuggler. In the 1920s, Prohibition turned fishermen into rumrunners and two-bit gangsters into millionaires, and moonshine haulers in their souped-up cars helped create NASCAR. Rare archival footage and photos help weave the compelling tale of our nation's love-hate relationship with illegal alcohol.

One bootlegger-turned-NASCAR-racer featured is Robert Glen Johnson, Jr. a/k/a Junior Johnson. He's credited with inventing the "bootleg turn," in which a driver escapes a pursuer by sharply putting his speeding car into a 180-degree turn on the highway, then speeding off in the opposite direction before his pursuer can turn around -- at least according to Wikipedia. Junior was convicted in 1956 of moonshining, and was pardoned in 1986 by Ronald Regan for that crime. That's just before NASCAR really, really took off. Hmmm.

The show also highlights the evolution of the Revenuer. This is interesting stuff (some good pictures). The modern-day Revenuers, I believe, play a more nuanced role in government than their predecessors. That's a good thing because it was a dangerous job -- but just one of many dangers encountered under The Noble Experiment.

I was at the library, Ociffer

2007-12-03T20:40:00.000-05:00

After pulling over a weaving car, the officer asks, "Have you been drinking?" The driver answers yes. Then the officer asks, "Where?" Well, look out if your establishment's name is the next sound heard. I just read "N.J. Sharpens Liquor-law Policing," in USA Today. It begins:

The state of New Jersey has a question for motorists stopped on suspicion of drunken driving: Where did you have your last drink?
Police must send the answers to state investigators looking for bars and restaurants where libations flow too freely. (P) New Jersey is the latest jurisdiction to adopt the tactic. This year, Texas started a smaller program, and Boulder, Colo., used last-drink data to get bars to be more careful about whom they serve. At year's end, the Washington State Patrol will publish its annual list of top 'last drink' locations.

What a clever tactic to curb drunk driving. And nightclub attendance. Establishments which push alcohol sales first, and food sales second, are going to sell proportionately more alcohol than their counterparts. That's fine. The problem, as New Jersey's police no doubt have found, is that some establishments fail to toe the mark when it comes to withholding alcohol from noticeably intoxicated persons. NJ's enforcement effort does not offend me from an establishment owner's perspective -- if the officers are working with the establishments to curb the problem. After all, it is not illegal (or even negligent) for waiters and bartenders to serve drinks to persons who then become drunk. Most restaurants have little problem plopping a bottle of red on a two-top. Or even a pitcher of margarita. Who's to say whether the customers will consume their beverages responsibly; it is the drinkers who must take responsibility for their decisions.

That said, it is negligent (in many states, like Georgia) to serve a noticeably intoxicated person who you know will be driving soon. A high-end, NJ drinking establishment might go to lengths to prevent its customers from drinking and driving, while a low-end restaurant might do the opposite, promoting irresponsible drinking. According to the USA Today article, the bar need not worry because:

The agency uses the last-drink data only to steer investigators to apparent problem spots, not as evidence to justify license revocations or fines.

Places are inspected only if they are named repeatedly as a last stop. He said the ABC has a list of 10 top targets, all of which have at least five hits in the 1,000-entry last-drink database.

When inspectors visit, they can charge establishments only with violations they actually see.

Again, this seems fair. The policy might, one day, turn into selective enforcement (SE). But the SE argument is an establishment-specific one. In the meantime, what better way to discourage irrational selection than to have a computer lay out the Top 10.

Among the ABA Journal's Blawg 100

2007-11-29T16:34:00.000-05:00

This is cool: Editors of the ABA Journal have selected Meeting the Sin Laws as one of the top 100 best websites by lawyers, for lawyers. Lawyers are being asked to vote on their favorites in each of the Blawg 100’s 12 categories. Voting ends Jan. 2, 2008. But enough.

One of my favorite legal blogs (which is much better than mine, no question) doesn't appear on the list. It's Marc Randazza's The Legal Satyricon. It never ceases to entertain and educate. Plus he says stuff that I'm too chicken to say. Think Larry David meets Giuseppe Peano meets the Judiciary.

I know that the ABA Journal's list is limited to "blawgs." If, however, the list had included traditional sites, one would have been the First Amendment Center. It's home to heavy-hitting scholars like David L. Hudson, Jr. and Charles C. Haynes. At David's Web site you'll find his books covering topics from sports to courts. Impressive and entertaining.

Anyway, I'm flattered to learn that my blawg has, at least, 2 readers. Very cool.

The "adult" in adult entertainment

2007-11-23T16:40:00.000-05:00

If you're a grammar snob, or maybe you're just terrified of sounding less-than-literate, check out The Grammarphobia Blog. Yesterday's entry: adult entertainment. There we learn that "[t]he use of 'adult’ as a euphemism for sexually explicit (as in 'adult cinema' or 'adult entertainment') dates from only 1958, according to the OED. The earliest published reference for 'adult' used to refer to the elderly (as in 'adult home') dates from 1968."

Many nouns are perceptually sullied when paired with the adjective "adult." To name a few: diaper, education, living facility, directory, game, joke, toy, novelty, and of course, entertainment. You hear "diaper" and think about cute babies. Throw the moniker adult in before it, and you're trying to change your mental channel. That's just one adult's opinion.

Which year(s) were YouPorn?

2007-11-19T19:45:00.000-05:00

An interesting article, Obscene Losses, by Claire Hoffman appears in this November's online edition of Conde Nast Portfolio. It begins:

DVD sales are in free fall. Audiences are flocking to pornographic knockoffs of YouTube, especially a secretive site called YouPorn. And the amateurs are taking over. What’s happening to the adult-entertainment industry is exactly what’s happening to its Hollywood counterpart—only worse.

From there Ms. Hoffman chronicles the adult entertainment film industry's seemingly generic (or, shall we say, mainstream) struggle with the Information Age:

As the portion of Americans with broadband connections (47 percent and growing) continues to rise, consumers are becoming increasingly addicted to the immediate gratification of Web video. But suddenly, there’s a chasm between porn consumption and porn sales. While sales of internet-based adult entertainment grew 14 percent last year, to $2.8 billion, that figure would be substantially higher if there wasn’t so much free competition, especially from the user-generated adult sites.

Much like the TV networks, movie studios, and record labels on the other side of town, porn companies are also engaged in a frantic attempt to diversify their offerings, filleting their films into smaller pieces that can be easily sold via an ever-shifting variety of digital distribution channels. From the pay-by-the-minute model on video-on-demand sites such as Adult Entertainment Broadcast Network and Hotmovies.com, to the four- to six-minute clips edited for mobile devices, the industry is looking to take the 90-minute sex videos from its old business strategy and carve them into bite-size moneymakers.

This is 'crazy talk' for a recession-proof business, right? It seems the AE industry's plight for mainstream acceptance has achieved -- or is coming closer to achieving -- mainstream access. (Is that what they carefully wished for?) From the 'brick & mortar' side of AE, and whether AE operators will admit it, limiting ports of consumer access (i.e., supply) has been the business of adult business. From the intellectual property side, it's been assumed that only producers could afford to distribute AE videos. So, if one can both access and distribute adult entertainment from their own port, what's to happen to producers and participants in adult entertainment? That's been the fear of musicians and actors since the dawn of copyright. And they're doing just fine.

The New Age might raise the quality of productions, or it might constrict the chosen distribution channels (Internet). Or it might do both.

Well, we didn't try to suppress speech ...

2007-11-19T10:30:00.000-05:00

... even if Judge Kanne of the Seventh Circuit Court of Appeals says, "yes, you probably did." This opinion is hot off the presses. In throwing out the Village of Washington Park's alcohol-ban in adult entertainment establishments, the Court writes:

Because the purpose of the ban on alcohol consumption in newly licensed establishments was to prevent competition,strict scrutiny applies. And based on its anti-competitive purpose, the ban is not “necessary to serve a compelling state interest and narrowly drawn to that end.” See Joelner I, 378 F.3d at 624. We therefore conclude that the alcohol ban and the licensing scheme as a whole (from Nos. 06-2901 & 06-3252 9which the alcohol ban is not severable) are unconstitutional on their face.

We add that even if the Village were indeed attempting to combat secondary effects with its alcohol ban, and intermediate scrutiny thus applied, the Ordinance could not survive. The Village again relies on Ben’s Bar and argues that because we there determined that a ban on alcohol in both newly and currently licensed adult entertainment establishments passed muster under intermediate scrutiny, see Ben’s Bar, 316 F.3d at 726-28, Ordinance01-63’s ban on alcohol in only newly licensed establishments can not possibly be considered less narrowly tailored.

But the Village’s reasoning is flawed. The Supreme Court has repeatedly recognized that an underinclusive regulatory scheme is not narrowly tailored. See Rubin v.Coors Brewing Co., 514 U.S. 476, 489 (1995) (concluding that “exemptions and inconsistencies bring into question the purpose of the labeling ban . . . [and] ensure[ ] that the labeling ban will fail to achieve that end”); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 425(1993) (determining that an ordinance was unconstitutional when, among other reasons, “the city has asserted an interest in esthetics, but respondent publishers’ newsracks are no greater an eyesore than the newsracks permitted to remain on [the city’s] sidewalks”). Here, there is similar underinclusiveness that would be fatal to the intermediate scrutiny-narrow tailoring analysis: the ordinance permanently insulates eight concentrated establishments from the alcohol ban and leaves alcohol use at those establishments otherwise entirely unrestricted.In fact, in Ben’s Bar we observed that “as a practical matter, a complete ban of alcohol on the premises of adult entertainment establishments is the only way the Village can advance that interest.” Ben’s Bar, 316 F.3d at 728(emphasis in original).

Wow! Now that's logic on high. I've come to expect nothing less from my Article III hero.

p.s. -- A slight correction: Judge Posner did not write this opinion, as I'd initially blogged. Oops.

If you can't beat 'em, buy 'em

2007-11-07T08:50:00.000-05:00

The City of Warren (a suburb of Detroit) has bought an adult bookstore:

The city of Warren has been known to purchase private businesses to aid long-term development goals. But city officials broke new ground with their recent purchase of an adult bookstore.
The rare move has given the city ownership of Book World, the last remaining adult bookstore in Warren. The goal is to eventually redevelop it into something more desirable for the adjacent neighborhood on Van Dyke just east of Eight Mile, officials say.
"This is the first time we've bought something to purely enhance the surrounding area. We have no long-term development plan for this particular parcel," City spokesman Joe Munem said. "This was such a bad use we wanted to help get rid of it to help strengthen the neighborhood."

According to the article in The Detroit News, one area resident believes that the city's purchase of the store will "'keep the kids out of trouble,'" given that there is "'plenty of that around here.'" Another neighbor thinks it'll "keep the neighborhood kids' curiosity at bay." Whatever. The store, which I'm sure limited its customers to those at least 18 years of age, is probably not to blame for the kids' issues. I'm guessing that boredom and education -- too much and too little, respectively -- play a part. And so long as the city's solution to unwanted media is to burn books, the kids' curiosity will fester without intellectual growth.

The Mild, Mild West

2007-10-28T09:53:00.000-04:00

From the Seventh Court of Appeals of Texas comes this case. It concerns Kenneth Smartt, who began operating a business involving nude dancers (Xoticas) outside the city limits of Laredo in 1995. In 1998, Laredo annexed the property. Four years later, Laredo amended a previously existing ordinance to require those operating sexually oriented businesses to obtain a license and to refrain from conducting operations within 1,000 feet of a residential area. Laredo sued for an injunction seeking to stop Smartt from operating his business because it purportedly violated the 1,000 foot restriction. A hearing was held, and the trial court granted the relief requested."

On appeal, Smartt argued that the trial court got it wrong because "1) the business does not 'fit' the definition of 'establishment' as used in the ordinance, 2) the ordinance is unconstitutional and 3) Laredo had an adequate remedy at law." He lost.

Argument #1 caught my eye. Smartt argued that Xoticas did not fit the definitions of the ordinance because (a) it was "grandfathered," and (b) it did not meet the definition of an "establishment." Regarding the grandfather argument, the court of appeals held, "[S]imply because Xoticas may have been in operation before the zoning ordinances were implemented does not mean that it is ipso facto immune from those ordinances." It then moved to the argument regarding the definition of "establishment," holding:

As for the argument about the business not falling within the definition of an "establishment," we note that the ordinance makes it illegal "for any person to operate a sexually oriented business without a valid sexually oriented business license . . . ." LAREDO, TEX., LAND DEVELOPMENT Code ch. 18A, §4(a). The ordinance similarly prohibits a "person [from] operat[ing] or caus[ing] to be operated a sexually oriented business within one thousand (1000) feet of . . . a church . . . [a] public or private . . . school . . . [a] boundary of any residential district . . . [a] public park . . ." and various other locations. Id. §13(b). Moreover, the word "person" encompasses "an individual, proprietorship, partnership, corporation, association, or other legal entity." Id. §2(q). In none of these several provisions appears the term "establishment." Instead, they purport to regulate "persons" and Smartt falls within the definition of a "person."

To the extent that Smartt somehow relies on the word "establishment" to exclude Xoticas from the scope of a sexually oriented business, we note that the latter is defined as, among other things, an "adult cabaret" and "sexual encounter center." The former includes "a nightclub, bar, restaurant, or similar establishment whose major business is… offering . . . live entertainment . . . intended to provide sexual stimulation or sexual gratification . . . ." Id. §2(c). A "sexual encounter center" encompasses, among other things, "a business or commercial enterprise that . . . offers for any form of consideration . . . activities between male and female persons . . . when one or more of the persons is in a state of nudity or is semi-nude . . . ." Id. §2(s). According to the record, Xoticas is "a nightclub which features . . . female performers" dancing topless but with "covered nipples" (while the other portions of the breast remain uncovered) and "bikini bottoms." Those indicia depict both live entertainment intended to provide sexual stimulation and activities between males and females with one being semi-nude. Consequently, evidence exists supporting the trial court's determination that Xoticas is a sexually oriented business, irrespective of the definition of "establishment."

Two thoughts here. First, the ordinance targets businesses -- regardless of whether they are run by sole proprietorships, corporations or actual "person[s]." There's always a human touch. So it seems somewhat odd to highlight that language when describing the ordinance's injunctive reach. To annex property and terminate a recognized land use should require an amortization period at least. (And the opinion doesn't say whether Xoticas' use was amortized.) Second, regarding the definition argument, I would have deposed the city's officials and pinned down what, exactly, constitutes a "sexual encounter center." That definition seems pretty broad.

Insight from the Inside: Dissenting Opinions

2007-10-23T15:44:00.000-04:00

This past Sunday (10/21) I attended the Leo & Berry Eizenstat Memorial Lecture at the Ahavath Achim Syngogue. The guest of honor? None other than The Honorable Ruth Bader Ginsburg. What a superb Sunday outing. You can read about the speech here. Justice Ginsburg spoke about the importance of dissenting opinions and the role that they play in the SCOTUS's jurisprudence. She reflected on her judicial temperment; how to strike balance on standing ground and achieving a common voice, all without sacrificing justice or dulling the judicial blade. She is, by all accounts, remarkable. So is her story. Very cool stuff.

Speaking of Justice Ginsburg and dissenting opinions, we're relying on one right now: McMillian v. Monroe County, 520 U.S. 781 (1997) (Ginsburg, J. dissenting). We recently filed a cert petition on behalf of a nude-dance club in middle Georgia, in which we argued that Justice Ginsburg's dissent has come to fruition. It's a sticky issue. It just so happens that the petition has captured some attention. You can link to it from SCOTUSblog.com's "Petitions to Watch" site here. How cool is that!

Yes, I'm aware that this photo (to the far right) is not Justice Ginsburg. But, we're told, it's her best friend on the bench. I bet he's pretty cool, too.

The Party of the First Part

2007-10-15T14:57:00.000-04:00

I just finished reading The Party of the First Part, by Adam Freedman. What a super book. I wasn't sure what to expect, given that reading about 'words' and their origins can be like, well, yucky. None of that here. Mr. Freedman's writing is devilishly sharp, crisp and probing while maintaining a light feel. I don't usually laugh aloud while reading books that were not written by David Sedaris, but I did here. Did you know:

In a segment entitled, "I Love Ewe," we learn about the statute of Henry VIII, which states that buggery -- a term defined as "a crime against nature" -- can take place "with mankind or beast." Ever since then the definition of buggery has included bestiality. Which, as you know, prohibits "laws against nature" with animals. In Virginia a bestiality statute outlaws sex only with a brute animal. Eeewwww.

The Anti-Beer Act (signed into law by President Harding in 1921) closed a loophole in the Volstead Act (Prohibition). I knew that Prohibition-era doctors were "prescribing" liquor for "medicinal purposes," but I didn't know that the legislature was cruel enough to pass the "Anti-Beer Act" to prevent off-label uses. Double eeewwwww.

The book is a delightful read -- and a super addition to your reference shelf.

Today's ban-out

2007-09-05T13:36:00.000-04:00

"Fairview council votes to ban adult businesses despite attorney's advice that the ordinance would be unconstitutional," reports the Belleville-News Democrat here. It seems that the original, proposed ordinance had provided that only two businesses could open in the city. The City Council then voted 8-1 to change the number to zero. Not exactly legal.

I lived in O'Fallon, Illinois (next door to Fairview Heights) for a few years. It was my fourth-through-sixth grade schooling, as I recall. And I loved it. My parents, both in the Air Force, worked at Scott A.F.B. Dad (a pilot) would occasionally take me to the flight line to watch the airplanes take-off and land (which remains one of my favorite past times). When I think of the stuff my parents let me do (e.g., playing hockey on the lake under the warm sun, sleeping half the night in my igloo, and climbing 25' trees like a monkey), I wonder how I survived childhood -- and without a helmet.

Anyway, I also remember my parents telling me why they enlisted as Air Force officers: to protect everyone's liberties. Dad could have made more money with the air lines (or with his M.B.A.), mom could have made more money in private practice (with her L.C.S.W.). But they got it. Maybe my old hometown, someday, will too.

Love Naught War

2007-08-28T20:32:00.000-04:00

From Dr. Marty Klein's Sexual Intelligence (a wonderful blog), comes this this post: When Language is More Important than War. It's more on PBS's deliberation to self-censor the broadcast of Ken Burns' 14-hour documentary on WWII (which contains four instances of profanity -- war is ugly, after all) amid concerns from the Parents Television Council. Dr. Klein is a Licensed Marriage & Family Therapist, Certified Sex Therapist, and sociologist with a special interest in public policy and sexuality. I had the pleasure of meeting him at a First Amendment Lawyers conference a couple of years ago, and he's impressive. He's written 6 books and over 100 articles about sexuality. According to his Web site, he trains thousands of professionals in North America and abroad in clinical skills, human sexuality, and policy issues.

Plus Dr. Klein knows censorship when he sees -- or doesn't hear -- it.

The FCC must think that peppering protected speech with small-arms fire will not curtail the "robust" debates of our time. But who orders an exquisite bottle of red and then turns to the wine steward and says, "Now please water it down." One day the Supreme Court will turn the First Amendment turret on the FCC, writing something like, "We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children." Butler v. Michigan, 352 U.S. 380, 383 (1957). Until then keep your eyes and ears and nose open.

Ketching-up

2007-08-26T11:46:00.001-04:00

It's a bird. It's a plane. It's ... a stripper? Granted, not exactly high heroics here, but some "strippers" at the Deja Vu club in Nashville were suspicious of $100 bills and called the police after a patron spent $600 of them. The man, who "authorities say used his computer to make fake $100 bills to buy lap dances at the strip club, has pleaded guilty to counterfeiting charges," according to the article. Taking a byte out of crime!

"PBS conflicted over adult language in Ken Burns' 'War,'" is the title of this article which appears in today's edition of the San Francisco Chronicle (and which I found via The Legal Reader). John from TLR comments, "We're being governed by a regime heavily beholden to fundamentalist Christian interests which would, if allowed, be just as repressive as the Taliban was in Afghanistan." Amen. Just knowing that the government is spending tax dollars on such misguided, silly censorship efforts makes me want to throw a tea party at the Boston Harbor. Good grief. Can you say, Distraction?

Strip club for sale! Oh wait. The City of La Habra (CA) has already bought it. Go La Habra!! Writes H.G. Reza for the Los Angeles Times,

After almost a decade of court battles and unsuccessful attempts to shut down the only strip club in La Habra, city officials announced this week that they would pay the owner $5.2 million to get out of town. As part of the settlement, the city will buy the property for $3 million. The city made the offer Aug. 6 during the Orange County Superior Court trial of a lawsuit against the city filed by Badi "Bill" Gammoh, owner of the Taboo Gentlemen's Club. The City Council approved the deal Monday.

Divorces can get messy. Someone taught me that the fairest way to handle a contested divorce is simple: Let Party A draft two lists which divide the community property, and let Party B pick which list to take. You can see the logical appeal. (Yes, I know that you can't cut the dog in half; it's probably been litigated and coined an "inadequate" remedy.) My point is this: the legal system (and the current billable-hour method for navigating this system) does not always promote efficient solutions to property disputes. Whether Party A is entitled to the house and car, or whether Party B is entitled to the entire dog, are hard questions. And yes, the courts can answer these questions. But you've got to know the endgame, and you've got to ask who you're going to hurt along the way. I think the citizens of La Habra were well-represented here.

Hiding is Dropping the ball

2007-08-18T14:29:00.000-04:00

This case was recently decided by the Superior Court of New Jersey (Appellate Division).

The petitioner, Fayette Fair Trade, Inc. ("Fayette"), which is wholly-owned by a shareholder, Rosario, appealed from a final determination of the Director of the Division of Alcoholic Beverage Control ("ABC") suspending its license based on a finding of an undisclosed business interest in the license, and the licensee's failing to disclose that interest in the application, or providing false, misleading or inaccurate information about it. The question on appeal: whether the licensee's employee, Jerez, who runs the day-to-day operations of the licensed premises with little or no oversight from the owner of the corporation licensee and who shares in the licensee's profits, but is not a shareholder, holds an impermissible, undisclosed beneficial interest in the liquor license in violation of state law.

This type of issue arises not infrequently in closely held companies. In the typical scenario, partners A, B and C wish to open a nightclub or restaurant, but, for whatever reason (e.g., C's felony conviction, or "tax issue"), C wishes to remain off the books. Whether C elects to disclose her personal tax affairs to the government, C must disclose her business affairs for the business in the process of applying for an alcoholic beverage license. Failure to do so usually creates an undisclosed "front," "farm out," or "lease out" (as the opinion teaches), which is a big no-no in the alcohol license scene.

Indicia of a front include: a licensee's lack of knowledge regarding the financial affairs of its business; the purchase of a license using commingled funds [and the wife sharing the profits thereof in the joint enterprise with her criminally disqualified husband], or funds contributed by a spouse; authorization of a non-licensee to pay bills, sign checks and retain profits; holding oneself out to the public as the owner; a husband authorized to withdraw business funds; the licensee visiting the premises once a month, having no knowledge of the business, and receiving no salary; or apparent control by an undisclosed party.

Fayette argued what it could: numerous companies offer their employees an "ownership" interest without necessarily issuing "stock" to them. But that argument didn't go far. As the court held:

Any arguments [Fayette] has to Jerez's non-shareholder status in the licensee corporation are irrelevant to this charge. Question 9.3 of the liquor license application unambiguously requires disclosure of "anyone not having an ownership interest in the license [who] receive[s] . . . (by way of rent, salary, or otherwise) all or any percentage of the gross receipts or net profit or income derived from the business to be conducted under the license . . . ." [Fayette] expressly answered Question 9.3 in the negative in its application filed on June 6, 2000. [Fayette] filed its 2002-2003 renewal application in May 2002, and on August 13, 2002, subsequent to the July 1, 2002 contract with Jerez, it submitted an amendment.[Fayette] admits it failed to amend its answer to Question 9.3 and disclose Jerez's profit-sharing interest at that time, nor do so in any of its subsequent annual renewal applications. See N.J.A.C. 13:2-2.14 (requiring a licensee to file an amendment regarding any change to its current license application not more than ten days after the change occurs).

The bottom line, as the court saw it, is that Fayette delegated a controlling interest in the operation to Jerez:

In the present case, Jerez admitted control over virtually every aspect of the day-to-day management and operation of the licensed facility -- opening and closing the business each day, handling all receipts and disbursements, making general operating decisions, making all entries into the books of account, and using personal funds or credit to purchase liquor or supplies for the business. She acknowledged Rosario's unavailability due to other business commitments; he testified he only checks on the business once or twice a week. Rosario admitted to relying heavily on Jerez regarding the operation of the business, accepting her word as to weekly profits and never questioning her claims for reimbursement of business expenses. Jerez referred to Rosario as her "partner," her July 1, 2002 written agreement provided for compensation by profit-sharing, and both she and Rosario testified they have shared all business profits at least "50-50" since that time. Based on Jerez's profit-sharing in the licensed premises, over which she exercised a large degree of unsupervised control, the Director found that Jerez, a non-shareholder, held an impermissible undisclosed interest over the liquor license, in contravention of N.J.S.A. 33:1-26 and N.J.S.A. 33:1-25.

Because the Director's determination had a statutory and regulatory basis (and was supported by the law and the facts of the case), ABC's deicsion is AFFIRMED.

The moral of the story: think locally, act globally, not the other way around.

Virtual Dollhouse

2007-08-15T23:16:00.000-04:00

In Edgewater, Florida there's this house. Somewhere, maybe in Edgewater, there's this Web Site, "CocoDorm.com, where visitors can, for a fee, watch live video streams from the Edgewater house, where chiseled young males are paid $1,200, plus room, board and meals, to live in the two-story home for a month and have sex with each other on schedule," reports the Miami Herald here. (Which I found while perusing The Volokh Conspiracy here.)

These cases are tricky for all sides. First Amendment Center scholar David L. Hudson, Jr. has written about some of the issues here. As Mr. Hudson observes:

The question remains whether an e-commerce adult business should be subject to these same zoning laws as a traditional adult bookstore or gentleman’s club that features disrobing dancers. Some Internet sites, such as the highly publicized Voyeur Dorm, let subscribers observe several young women sharing a house. The houses are wired with cameras in various rooms so that subscribers have 24-hour access to the women's activities.

The catch is that these houses may look like any other house in a residential district. City planners may wish to prevent such businesses from operating in neighborhoods, but may have a hard time regulating them under traditional adult-business zoning laws.

A hard time indeed. Keep an eye (or two) on this case.

Liquor Law Watch

2007-08-12T13:47:00.000-04:00

This decision comes down from the Montana Supreme Court.

It concerns one bar's effort to transfer its liquor license to a soon-to-be casino in Great Falls. Before issuing the license, Montana's Department of Revenue ("DOR") published a notice of the license application in the newspaper. Because a number of written protests were received by the DOR, it held a public hearing to determine whether the bar ("Hare's Ear") was qualified and whether the application satisfied the requirements for public convenience and necessity. Among the inquiries was whether "the welfare of the people residing in the vicinity of the premises will be adversely and seriously affected" if the liquor license issued.

The DOR held a hearing and approved the transfer, contrary to the wishes of the Citizens of Great Falls, Montana ("Protestors"), who appealed the DOR's conclusion that transferring the liquor license to Hare's Ear would not adversely or seriously affect the welfare of residents in the vicinity. The Protestors contended that the transfer of the liquor license, which would then lead to the issuance of gambling machine permits, would adversely and seriously affect the welfare of Gore Hill residents. The DOR, say the Protestors, misapprehended the evidence provided by the residents, a clinical psychologist, psychiatrist, and medical doctor that gambling is bad for a community. In affirming the DOR's decision, the supreme court held:

The Protestors' arguments in opposition to the liquor license and gambling raise very broad policy-type concerns. They argue that gambling can be addictive and lead to criminal behavior for some individuals, gambling should not be legal, or gambling should be restricted to certain areas of Great Falls. As the Department indicated, these arguments are better left to the legislature, which has chosen to legalize gambling. The most specific objection to the Jackrabbit Red's Casino was that, given its very busy, visible location, it would draw people in and the residents of Gore Hill, when driving by, would encounter dazed gamblers. Nonetheless, the Protestors failed to provide substantial evidence that demonstrated how Jackrabbit Red's Casino, located at least a half mile from the nearest home, would adversely affect the residents in the vicinity.

Not having reviewed the record -- much less the laws -- of this case, I'm less than competent to comment. But hey, this is the blawgosphere. The decision seems correct; the standard of review, alone, gave the Protestors all they could handle. The Protestors concerns are real to them, and possibly real to all. Those concerns, however, are, as the supreme court stated, "broad policy-type concerns." Presumably the State of Montana's legislature weighed these and other concerns when passing the statutes (which enable the DOR's regulations), and it chose to allow liquor to be served (and casinos to operate) in Hare's Ear's zone. End of story.

If doubt remains, consider the structure of the laws in question. In Montana, before a business may qualify for a gambling license, it must first secure a liquor license. Compare that with the national, preferred method for crippling unwanted strip clubs: banning liquor sales. The idea is that strip clubs (nightclubs) will have trouble making money without alcohol sales. Which is true. But back to Montana. If the legislature is using the strictures of the liquor laws to limit where casinos may locate, so be it. The question of whether the two vices (liquor and gambling) may co-exist, however, has been answered by Montana.

Mr. Dead

2007-08-07T21:03:00.000-04:00

This Seventh Circuit case is about horses. It is not pretty; in fact, it's kinda dark.

Judge Posner, writing for the majority, begins, "Cavel International, the principal appellant (we can ignore the others), produces horsemeat for human consumption. The plant at which it slaughters the horses is in Illinois. Americans do not eat horsemeat, but it is considered a delicacy in Europe and Cavel exports its entire output. Its suit challenges the constitutionality of a recent amendment to the Illinois Horse Meat Act ... that makes it unlawful for any person in the state to slaughter a horse for human consumption or 'to import into or export from this State, or to sell, buy, give away, hold, or accept any horse meat if that person knows or should know that the horse meat will be used for human consumption.'"

From there it's "Injunction Pending Appeal 101" and, as only a master wordsmith can, Posner writes beautifully about an ugly topic, dispensing logic like a delicacy along the way:

The state does not question the gravity of Cavel’s situation (despite the remark about the fire) but responds that the state will incur irreparable harm, too, if the injunction is granted, because a“slaughter cannot be undone.” But the statute does not seem to be intended to protect horses. (The object of the statute is totally obscure.) For it is only when horsemeat is intended for human consumption—the niche market that Cavel serves(less that 1 percent of its output is sold for other consumption)—that a horse cannot be killed for its meat. Were Cavelor a successor able to find a market in pet-food companies, the slaughter of horses at its plant would continue without interference from the state. And, if not, all that will happen is that horses will be slaughtered elsewhere to meet the demands of the European gourmets.

The majority then granted a stay pending appeal. Judge Easterbrook dissented:

No state of which I am aware—and no federal law or serious student of the subject—has advocated the rule: “Laws that impose losses large enough to prompt people to hire lawyers take effect only at the conclusion of federal judicial review.” Such a rule not only denies states part of their legislative power but also leads to strategic behavior: people hire lawyers and file suits not because they expect to win,but just because they can benefit from delay. That’s a fair characterization of this suit. Just as the state won’t compensate Cavel for losses in the interim if Cavel wins in theend, Cavel does not propose to compensate Illinois for any injury caused by delayed effectiveness of the statute. The majority does not require Cavel to post an injunction bond. Requiring an applicant to back its position with a promise to pay would curtail strategic claims.

Federal courts should allow states to select and enforce effective dates for their statutes. Equitable relief is appropriate only when the plaintiff shows a substantial likelihood of winning. Cavel has not met this standard and is not entitled to an injunction pending appeal.

Watching as legal giants jockey for position is pure sport. Pressing sweeping notions of federalism against meticulous "rules" of judicial procedure, the court almost -- but not quite -- lets you forget what this case is about: horse meat.

In my American, boyhood mind, horses aren't to be eaten by humans. I understand that my dine-equine hang-up is, at least partly, cultural. Take cows, for instance. When media would have them twist in tornadoes, or pump chicken-sandwich sales to save their delicious hides, I laugh and say, "How clever." I'm growing. For now I'll retain my hypocritical ways.

Spam

2007-08-05T22:09:00.000-04:00

This week's issue of The New Yorker includes this article, entitled "Damn Spam." Written by Michael Spector, the article explores the federal government's attempt to rid -- or at least curb -- that most-annoying affliction suffered by e-mailers across the globe: spam. Mr. Spector notes some interesting facts:

Spam’s growth has been metastatic, both in raw numbers and as a percentage of all mail. In 2001, spam accounted for about five per cent of the traffic on the Internet; by 2004, that figure had risen to more than seventy per cent. This year, in some regions, it has edged above ninety per cent—more than a hundred billion unsolicited messages clogging the arterial passages of the world’s computer networks every day.
...

The original Spam (a contraction of “spiced ham”) is made by the Hormel Corporation, which sent enough cans of it overseas during the Second World War to feed every G.I. In a celebrated 1970 Monty Python skit, a diner tries repeatedly and in vain to order a dish, any dish, without Spam. She is drowned out by a group of Vikings in horned helmets, who chant the word dozens of times—“Spam! Spam! Spam! Spam! Spam! Spam! Spam! Spam!”—eliminating any possibility of rational thought. The word was rapidly adopted by computer programmers as a verb meaning to flood a chat room or a bulletin board with so much data that it crashes.

Definitions vary, as does the line between spam and annoying but legal ads. (Like pornography, however, which has profited greatly from the ease and privacy of electronic junk mail, you know it when you see it.) Few companies could function without attempting to stop spam from invading their employees’ in-boxes. The costs are not always easy to assess, but several studies have found that in the United States more than ten billion dollars is spent each year trying to contain spam. The success rate of such anti-spam efforts usually exceeds ninety-five per cent, but spam behaves on the Internet in much the same way that viruses do when they infect humans: it might take a million of them to attack an immune system before one gets through, but one is enough. The same is true of e-mail. The more spam that is blocked, the greater the volume spammers will need to send in order to make money. “If you used to have to send fifty thousand pieces of spam to get a response, now you have to send a million,’’ John Scarrow, the general manager of anti-spam technologies at Microsoft, told me. (Spammers usually need to send a million e-mails to get fifteen positive responses; for the average direct-mail campaign, the response rate is three thousand per million.)

I'm somewhat familiar with the Controlling the Assault of Non-Solicited Pornography and Marketing Act, which is referred to as the CAN-SPAM Act. As the article correctly states, this federal law (passed in 2003) requires people who send e-mail advertisements to offer recipients the opportunity to decline future messages. And the violations are stiff. Enforcement usually raises questions about preemption and free speech. Here are a couple of skirmishes: this one from the Fourth Circuit, and this one from the Fifth Circuit.

Even if you're not a Monty Python fan, you've gotta pick their spam over this stuff.

Not-so-sinful: Dogs

2007-07-25T09:19:00.000-04:00

"If you eliminate smoking and gambling, you will be amazed to find that almost all an Englishman's pleasures can be, and mostly are, shared by his dog." -- George Bernard Shaw

Mommy, this commercial is making me thirsty...

2007-07-21T22:18:00.000-04:00

... so please give me your purse -- I'll need your money, your car keys and my fake I.D. card.

This opinion was issued this week from the Sixth Circuit Court of Appeals. The plaintiffs are the parents of minor children, and the defendants are (among others) domestic manufacturers and importers of alcoholic beverages, including Anheuser-Busch, Inc. The claim: the defendants' advertising is responsible for the illegal (underage) purchase of alcoholic beverages by minor children, and the plaintiffs' children have been subject to these advertising campaigns.

Can you guess the needle that popped the plaintiffs' balloon? Yep, standing. The "irreducible constitutional minimum of standing" comprises three requirements: injury in fact, causation, and redressability. The parents claimed two kinds of injury, economic injury and injury to their parental rights. As to the latter type of injury,

This Court is aware of no legal authority that would support restriction of a private party's freedom of speech and expression under the theory that the expressed ideas interfere with a parent's right to make decisions regarding their children's upbringing. Parents have a right to make fundamental decisions about a child's upbringing, but they have no legal right to prevent other private parties from attempting to influence their children.

The economic injury claim failed "principally because these plaintiffs have not alleged that their children have purchased any alcohol -- that is, these plaintiffs have not alleged that they have suffered any economic injury. Therefore, the plaintiffs' complaints do not allege a legal 'injury in fact' based on this theory."

After gutting the plaintiffs' case on standing's "injury in fact" requirement, the court of appeals went on to point out the causation problem:

As the plaintiffs' complaints acknowledge, laws in both forum states protect against the underage consumption of alcohol -- both the sale of alcohol to and the purchase of alcohol by a minor are unquestionably illegal. Therefore, the causal connection between the defendants' advertising and the plaintiffs' alleged injuries is broken by the intervening criminal acts of the third-party sellers and the third-party, underage purchasers.

The case didn't survive a Rule 12(b)(6) motion to dismiss. That's not surprising (IMHO). As the court so eloquently put it:

[I]f outlawing the actual sale and purchase is insufficient to remedy the alleged injuries (which is the premise underlying the plaintiffs' theories), then outlawing mere advertising must be insufficient as well. Consequently, the plaintiffs cannot demonstrate redressability. If these plaintiffs are convinced that alcohol advertising (i.e., First Amendment commercial speech) should be outlawed, then the means must be by legislation or constitutional amendment, not by judicial fiat.

Irrebuttably rebuttable

2007-07-12T10:16:00.000-04:00

From the Tenth Circuit Court of Appeals comes this decision.

The appeal concerns The Lion's Den, which opened at a rest stop off of Interstate 70 in Dickinson County, Kansas in September 2003. According to the opinion, The Lion's Den is probably the first sexually oriented business in the County in at least 25 years, and it may be the first such business in County history. "It is located just off an exit ramp on I-70, in an unincorporated portion of the County. The total population of the unincorporated portions of Dickinson County is small, numbering just over six thousand people. Adult bookstores located near highway exit ramps rely on business from passing interstate traffic. The store's inventory is almost entirely adult-oriented, and consists of a variety of sexual devices and sexually explicit magazines, videos, and DVDs." That is the backdrop.

If you're a fan of the First Amendment, you'll enjoy reading the opinion. You see, once the County caught wind of The Lion's Den, it scrambled to keep the store out of business. Or so it seems. It adopted a speech-restricting ordinance which banned The Lion's Den from operating a sexually-oriented book and video store at its location. Mind you, the County did not say that it was trying to close the store; that purpose would have sunk the law. Instead the County stated its purpose was to regulate the so-called "secondary effects" of adult businesses, including to: "(1) protect and preserve the health, safety, and welfare of the patrons of sexually oriented businesses as well as the citizens of the County; (2) limit unlawful sexual activities; (3) minimize crime; and (4) preserve the property values and character of surrounding neighborhoods and deter the spread of urban blight."

Adopting ordinances to address the secondary effects -- as opposed to the primary effects -- of speech is the preferred (albeit controversial) method for legislating against adult entertainment. But how do you know what the legislature's real motive is? After all, legislators occasionally say things just because they think it's what the public (including the courts) wants to hear. And courts don't like to delve into legislative motive. So establishing an illicit legislative motive is tough.

The legislature is not "free and clear" yet, though. Under Supreme Court jurisprudence, to justify a law restricting speech under a 'secondary effects' rationale, the legislature must rely on some evidence to believe that the law will curb these adverse secondary effects. In this case

the studies relied upon include a wide variety of methodologies, both anecdotal and empirical, and are not easily summarized. Equally diverse are the studies' findings. Although most, if not all, find that adult businesses trigger at least some secondary effects in surrounding areas, the findings rest on a number of factors, including: the type of neighborhood in which the sexually oriented businesses are located, the concentration of sexually oriented businesses, and the nature of the sexually oriented business itself. All of the studies relied upon by the Board examine the secondary effects of sexually oriented businesses located in urban environments; none examine businesses situated in an entirely rural area. To hold that legislators may reasonably rely on those studies to regulate a single adult bookstore, located on a highway pullout far from any business or residential area within the County, would be to abdicate our "independent judgment" entirely. Such a holding would require complete deference to a local government's reliance on prepackaged secondary effects studies from other jurisdictions to regulate any single sexually oriented business, of any type, located in any setting. Our review is deferential, but the evidentiary basis for the Second Ordinance must establish some minimal connection to the secondary effects attendant to Dickinson County's existing sexually oriented business(es). Based on the record before us, we conclude that a material dispute of fact exists as to whether the Board has established such a connection.

Judge Ebel concurred in the judgment (and the majority joined):

The majority would conclude that the County's pre-packaged studies and case law are insufficient to meet the County's initial evidentiary burden because the County's evidence concerns local governments' experiences with sexually oriented businesses in an urban setting, while the County is a rural, sparsely populated area. This may be a valid distinction to draw at the later stages of the Alameda Books' analysis. Notwithstanding our obligation in the First Amendment context "to make an independent examination of the record in its entirety to ensure the challenged regulation does not improperly limit expressive interests," Z.J. Gifts, 136 F.3d at 685, I do not think that this rural/urban distinction is sufficient at the initial stage of our analysis.

It turns out that the First Amendment is not circumvented by laudable motives and prepackaged studies. That's probably why I can type this.

Newsflash: strip clubs run legitimate businesses

2007-07-08T17:12:00.000-04:00

Do I sound crass? Forgive me, but I'm hardly surprised when stories like this sell ink. In a special report ("The Naked Truth about Strip Clubs"), William Sherman for the NY Daily News reports that "there are about 3,600 strip clubs nationwide," and "from a business point of view, it's all like Las Vegas was in the early '70s. Investors and banks are realizing that like gambling and casinos, adult entertainment and gentlemen's clubs are a legitimate business." (internal quotations omitted). It's a good article.

Today, gentlemen's clubs in the city, and across the nation, are becoming big business and quite conventionally corporate. With profit margins up to 30% they can rake in hundreds of millions of dollars.

Rick's is part of a publicly traded corporation, Rick's Cabaret International Inc., with shares traded on the NASDAQ, and accountants, attorneys, Securities and Exchange Commission filings and a business model not very much different than WalMart, except for what's being sold.

Ain't that the truth. I think that America's nightlife culture will continue to spin toward a European openness. So, the not-too-distant problem is not 3,600 clubs today, 2,600 tomorrow. No, I think there will be 4,600 clubs tomorrow, and 9,200 sexual harassment lawsuits the day after tomorrow. There's just too much legitimate business going on inside the clubs to keep business women out. And that's not an entirely non-hostile environment for your average female professional to work in.

Inadvertent martyrdom

2007-07-01T11:59:00.000-04:00

"A porn actress who claimed she performed oral sex on a state trooper who stopped her for speeding lost her chance to avoid the ticket he issued because she failed to appear in court Friday," reports USA Today here. Two quick comments:

I thought that kinda thing happened only in books and movies.

I'm figuring out USA Today's marketing strategy -- think hotel room, every morning.

Anyway, according to the article, the 21 year-old actress (Ms. Richert) blogged about her encounter with the Tennessee Highway Patrol trooper (Mr. Moss). As one might imagine, Mr. Ross soon "resigned" and failed to appear in court. Mr. Ross' no-show was good news for the other 16 motorists (ticketed by him) who did appear in court and had their traffic tickets dropped.

Here's to the martyr of the week, Ms. Richert.

Going once, going twice ... sold!!!

2007-07-01T11:17:00.000-04:00

"His topless nightclub was only open for a few days, but a businessman in Pasadena is walking away with a $1.5 million tip from the city to shut it down, and turn the property over for re-use, it was reported Saturday," reports CBS News here. You can read a detailed story here, courtesy of the Pasadena-Star News. The city is paying about $5 million for the club. A preview:

"We recognized this was going to be a pretty long and drawn- out litigation," said Deputy City Attorney Javan Rad, adding that it was a good value for the city because it staved off further litigation from Hakopyan and brought a valuable property into the city's possession.
The settlement figure was a "blended amount" that included the property value and litigation settlement, Rad said.

In a good settlement, both sides feel as though "they got a little screwed on the deal." At least that's what I've been taught (and experienced). No, when I represent clients, I don't shoot for the angst compromise. I just know that settlements, as opposed to judgments, necessarily involve some give with the take. Sidebar: The Art of Negotiation.

From reading this article, both sides are happy with the negotiated settlement. And who can blame them. The city would have spent an inordinate amount of time and money litigating with the strip club over an uncertain outcome. The same goes for the club. Under the settlement, the city and the club gain valuable property; that is, both have found economic and intrinsic benefit from deciding their fate, rather than letting a crew of judges do that for them.

Life's a beach sometimes

2007-06-29T18:21:00.000-04:00

Two federal, appellate opinions concerning adult entertainment were issued this week.

From the Seventh Circuit Court of Appeals, there is Forty One News, Inc. v. County of Lake. Long story short: 41 News, an adult book and video store, sued the county under 42 U.S.C. Sec. 1983, challenging the county's adult use ordinance on federal constitutional grounds. The county in turn launched a "quasi-criminal enforcement proceeding" in the state court against 41 News. Holding: the district court properly abstained from hearing 41 News's challenges under Younger v. Harris, 4o1 U.S. 37 (1971). Recall that “[t]he rule in Younger v. Harris is designed to ‘permit state courts to try state cases free from interference by federal courts.’” Hicks v. Miranda, 422 U.S. 332, 349 (1975) (quoting Younger, 401 U.S. at 43).

Who wins the race to the courthouse does not dictate which court retains jurisdiction. Several years ago, this issue surfaced in a case (For Your Eyes Alone, Inc. v. City of Columbus) that our firm handled. The facts were of course different, but either way, the court of appeals went the other way. I mention that case because I love the thoughtfulness of the court's opinion:

Our decision that Younger abstention is unwarranted in the present case is colored by the cautious approach we have chosen to take in interpreting the scope of Hicks, given its possible effect on the federal jurisdictional scheme. On the one hand, the requirement enunciated in Hicks — a federal court must abstain if a state action is filed before proceedings of substance on the merits have occurred —ensures that the Younger doctrine neither is trivialized nor made formalistic by permitting a party to obtain federal relief merely by beating the state to the courthouse. Hicks, 422 U.S. at 350, 95 S. Ct. at 2292.

On the other hand, if we define too narrowly what constitutes proceedings of substance on the merits, we risk “vest[ing] the district attorney — not the aggrieved citizen — with the power to choose the forum, and, indeed, the nature of the proceeding in which the federal constitutional claim [will] be litigated.” Owen M. Fiss, Dombrowski, 86 Yale L.J. 1103, 1135 (1977); see also Erwin Chemerinsky, Federal Jurisdiction § 13.3, at 788 (3d ed. 1999). Indeed, we would risk creating an expansive “reverse removal power” in that state prosecutors, in effect, would have broad discretion to remove federal civil rights actions to state criminal court on a routine basis, even after the plaintiff had invested precious time and resources to bringing the federal litigation. Fiss, supra, at 1136. Consequently, while Hicks teaches us to refrain from focusing disproportionately on the respective commencement dates of the state and federal actions in determining whether Younger abstention applies, we must, at the same time, remain circumspect about interpreting Hicks in a manner that gives state officials expansive leeway to override a plaintiff’s choice of whether to litigate in a federal or state forum. Our decision here is an attempt to strike this balance.

From the Eleventh Circuit Court of Appeals, there is Daytona Grand, Inc. v. City of Daytona Beach. Daytona Grand (d/b/a Lollipop's), an adult theater, challenged several of the city's zoning and public nudity ordinances. Lollipop's won (for the most part) in the district court. It lost, however, in the court of appeals. Among the holdings in this case:

Undeveloped industrial property (e.g., no buildings, little infrastructure, single private ownership) was properly counted for site availability analysis;

No grandfathering rights attached (under Florida law) even though the club opened when the zoning code was evidently unconstitutional;

The city could rely on anecdotal data to justify its adult ordinances, so long as that data is/are reasonable; and

The city could require more clothing than pasties and G-strings in an adult club.

This case is sure to make waves.

Cockfighting ...

2007-06-23T13:07:00.000-04:00

... is sport in Louisiana.

But "[t]oday, the Louisiana House of Representatives approved a bill to ban any gambling at cockfights, dealing a blow to cockfighting enthusiasts who attend the fights both for the bloodletting and the wagering," as reported here by Media Newswire. Don't start counting eggs just yet, though. Some House members believe that cockfighters should have another year before having to get out of business.

"If the House is not willing to adopt a six-month ban on cock fighting, it is apparent that the legislation will die and another session will pass without legislation to ban this barbaric activity," added Pacelle. "It is time for the House to compromise, and not bend over backwards to accommodate the wishes of cockfighters."

The dispute in the legislature also sparked a reaction from U.S. Sen. David Vitter, who has been a long-time opponent of cockfighting. "Louisiana is the last state in the country to allow cockfighting, and this practice casts a negative image of our state that hurts our ability to bring in good jobs and foster economic development," said Vitter.

Vitter and the rest of the Louisiana Congressional delegation favored a federal bill, enacted in May that established an immediate ban on any interstate transport of cockfighting implements and immediately toughened the federal penalties for interstate transport of animals for fighting.

The issue is interesting. The Humane Society of the United States has posted a Cockfighting Fact Sheet. Describing it as a "centuries-old blood sport," the HSUS points to animal suffering, gambling, unreported income, drugs and even homicide as "concerns" endemic to the sport. One proponent of cockfighting, however, asks "If you don’t mind eating birds raised in horrific cramped conditions and pumped with steroids to the point some can’t support their own weight, then why mind a few birds dying for sport?" "If that’s the case then Chick-fil-A should be banned."

One of my college roommates briefly majored in "Poultry Sciences." (I'm not sure why; nor is he.) I say "briefly" because, upon visiting his first poultry processing plant, he promptly changed his major. A chicken is tasty, but its final moment is not for the faint of heart.

Did I just do that?

2007-06-22T09:35:00.000-04:00

This is great. Lawyers are frequently -- and rightfully -- bashed for writing (and even speaking, iiik) in legalese. (There's a ban on legalese at this firm.) Too bad the movement to quash legalese has not spread more quickly through the Legal World. It'd prevent tragedies like this one, reported by the NY Times here, which is blawged by The Party of the First Part under "Herein, Legalese Interferes with Suds."

Sticks & Stones

2007-06-21T15:15:00.000-04:00

In Indiana, "a judge has fined the owners of a southern Indiana adult bookstore and lounge $30,000 for violating a county ordinance limiting the operation of a sexually oriented business," reports TheIndyChannel here. You can read the judge's order here.

Farther to the west, "a judge ordered the owner of a nude dance club to pay a $90,000 fine for violating city code barring adult businesses from operating within 500 feet of a residential area," reports SignOnSanDiego.com here.

It's getting expensive to stock racy merchandise.

Strike one -- you're out!

2007-06-14T21:15:00.000-04:00

"Baseball fans may have to trade beer suds for soda pop this summer after the state says it found questionable practices involving alcoholic beverage licensing. All of the United League Baseball (UBL) teams in Texas, including the Harlingen WhiteWings and Edinburg Coyotes, will likely lose their alcoholic beverage licenses in the next several days in connection with the findings," reports The Brownsville Herald online here.

According to the article, the Texas Alcoholic Beverage Commission's regulations require that the manager listed on an alcoholic beverage license be someone who (1) "profits" from the alcohol sales, and (2) actively participates in managing alcohol sales. And this was not the case for the UBL's listed licensee here, Jerry Deal, who only held that position on paper.

It appears that, for whatever reason, Deal was demoted and denied managerial benefits by the UBL. Oops. It's probably not good to upset the person who holds the key to your coolers -- who do you think has the leverage.

The end of the story: Deal surrenders his alcohol license to the TABC. Fans will likely face a beer drought. Just typing "beerless baseball" makes me thirsty.

An Adult Entertainment District

2007-06-12T10:47:00.000-04:00

"Cleveland Mayor Frank Jackson on Monday proposed the creation of an adult-entertainment district in the Flats to house up to three strip clubs, possibly including Larry Flynt's Hustler Club," reports The Plain Dealer here. The district would help the adult businesses. For example:

Currently, city law requires strip clubs to be no closer than 1,000 feet from parks, schools, churches, libraries and residential districts. But the restrictions would not apply to clubs in an adult-entertainment district.
...
Diamond club manager Ed Thompson said he likes the idea of an adult-entertainment district because it would be marketable and convenient to convention-goers.

I like the initiative here. The Mayor seems unafraid to propose something that might, God forbid, help the adult entertainment industry. I cannot informatively comment on the events leading up to this potential compromise, but I'm quite sure that it will save the City time and money on the road to Wellville.

Bail bonding companies: do they get one call?

2007-06-09T18:28:00.000-04:00

I love bail bonding cases. Having represented several bounty hunters and bail bondspersons over the years, I can tell you that they are their own breed of cat. (Did you think I'd say "dog"?)

The Fifth Circuit Court of Appeals decided this case yesterday. It concerns two bail bondsmen who challenged a Texas statute which restricts solicitation of potential customers. They argued that the statute denied their First Amendment rights. The district court agreed, and the court of appeals affirmed (for the most part). It's an interesting decision for a couple of reasons. But a little background, first.

The Texas statute (Sec. 1704.109) empowers bail bond boards to regulate "solicitations or advertisements" by bail bonding companies to protect the public from "(A) harassment; (B) fraud; (C) misrepresentation; or (D) threats to public safety." Subsection (b)(1) of that statute prohibits any solicitation regarding an outstanding warrant, unless the subject of the warrant is a previous customer. Subsection (b)(2) restricts the time of solicitation after arrest, prohibiting solicitation in person or by phone from 9:00 p.m. to 9:00 a.m., or within 24 hours after a person has been arrested, either with or without a warrant. The plaintiffs challenged these subsections.

On paper, the sticking point is simple: on the one hand, bail bonding companies want to contact potential clients early (it's a competitive business, after all); on the other hand, Harris County wants to reduce "1) the flight risk for felony offenders and high-level misdemeanor offenders; 2) the risk of harm to officers, defendants, and bystanders when such defendants are arrested; 3) the risk of harm to victims, family members, or witnesses from retribution; and 4) the potential for destruction of evidence." In reality, the legislature’s purpose in enacting § 109 was probably to hinder competition between large, affiliated bondsmen and independent bondsmen. Whatever the legislative intent, though, the Fifth Circuit held that the statute did not carry out the County's interests above.

Two things make this ruling interesting. The first is federalism. As it happens, one of the plaintiffs is challenging Harris County's version of Section 1704.109 (the county adopted a law similar to the state statute challenged here), and his challenge to that county law is pending in the Texas Supreme Court. The Fifth Circuit, however, did not wait for the supreme court to rule. Instead it stated that "the present case involves a central issue of federal constitutional law, and although we abstain from ruling on issues of Texas constitutional law, see Railroad Commission v. Pullman Co., 312 U.S. 496(1941), we rarely abstain from ruling on federal constitutional law." That is the right ruling (IMHO), especially given the First Amendment stakes.

The second interesting aspect of the ruling concerns the requirement vel non of pre-enactment evidence to support a partial ban on commercial speech. The plaintiffs argued that only evidence created before enactment of § 1704.109 and relied upon or cited by the legislature in passing it can be considered under Central Hudson. Consequently, they argued, because the legislative record behind § 1704.109 is bare, it cannot survive scrutiny. Harris County disagreed, offering testimony and affidavits introduced in the district court. The Fifth Circuit sided with the county and held that Central Hudson does not require that evidence used to satisfy its strictures exist pre-enactment.

Some will find this second aspect problematic. For one, if I read the opinion correctly, the legislature has little incentive to honestly weigh evidence supporting the need for a speech-restrictive law if the legislature's attorneys can do that job for them later when (if ever) the law is challenged in court. For another, the ruling creates a recipe for state and federal collision. If the state adopts a statute banning speech, and that ban is challenged in federal court, the federal government can entertain evidence about the governmental interest that was not before the state legislature. And that "trial evidence" may be what tips the scale in favor of upholding the statute. To me, post-hoc justification of a law doesn't sit well because the First Amendment prohibits banning speech in the first instance. This is particularly true when the "evidence" supposedly shows the state legislature's motives.

I wonder if the Dog agrees.

The F Bomb

2007-06-06T20:52:00.000-04:00

If you're the sensitive-type, put on your blinders ...

"Take a guess what they sell at http://www.fuckingmachines.com/. Or just go to the site," begins this article by Jeffrey C. Billman of the Orlando Weekly. The article features an Orlando attorney, Marc Randazza (who also happens to be a good friend) and his client's plight to trademark the Web site.

The F-acts, as Mr. Billman succinctly puts them:

The site went live on Sept. 25, 200. In July 2005, the San Francisco-based company that owns [the domain, Cybernet Entertainment LLC, asked the United States Patent and Trademark Office to trademark the word “fuckingmachines.” That’s standard practice for any business that wants to protect its interests.

Cybernet’s request met the government’s most preliminary standard: No one else was using the word “fuckingmachines.” But it didn’t clear another, more important hurdle: The patent office believes the word “fuck” is “scandalous,” and won’t allow Cybernet owner Peter Acworth to trademark it, or any variation of it.

...

Cybernet appealed the trademark office’s ruling in August. Randazza filed an “amendment and response to office action,” asking the government to reconsider. His argument boils down to the idea that really, the F-word isn’t that bad.

“The Applicant respectfully challenges this characterization of the word ‘fucking’ and its allegedly ‘offensive and vulgar’ root: ‘fuck,’” Randazza writes. Then he launches a crude, funny defense of the word.

“[T]his much maligned four-letter word has no intrinsic meaning,” Randazza writes. “Fuck [can] play a role as a figurative term, for example, ‘to fuck’ can also mean ‘to deceive.’ It is a word of force that can assist us in our expressions of joy when used as an infix, as in ‘abso-fucking-lutely’. ‘Fuck’ helps us express rage when we scream ‘fuck you’ at a football referee, or at a motorist who has just cut us off in traffic. ‘Fuck’ can help us express pain, as it is quite frequently the first thing out of most men’s mouths when they strike their thumb (accidentally) with a hammer. ‘Fuck’ is a vehicle for our disappointment, when we see that our report card is not as good as we had hoped, or when our significant other is late for dinner, or leaves us
altogether. ‘Fuck’ is an old friend, who can always make us laugh.”

He quotes from the movie Wedding Crashers: “‘This girl’s fit for a strait-jacket. I mean she’s fucked three ways to the weekend. But you know what, Father? I dig it!’”

“If I didn’t use ‘fuck’ liberally,” Randazza says of his argument, “I’d be conceding the fucking argument [that the word isn’t used in proper settings]."

To say that this appeal is interesting is a ... well, you know, an understatement.

The FCC is bleep'n wrong

2007-06-04T21:09:00.000-04:00

As The Hollywood Reporter reports here, "The federal appeals court in New York on Monday tossed out a key FCC indecency ruling that said a slip of the tongue gets broadcasters a fine for indecency, telling the commission that it failed to give a good reason for its decision and couldn't likely find a good reason if it had to. 'We find the FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedures Act for failing to articulate a reasoned basis for its change in policy,' the court wrote in a 2-1 opinion."

You can read the opinion here.

Aggrevated Stocking

2007-06-03T10:31:00.000-04:00

"Cam I bookstore has 48 hours from Thursday's ruling to close at 8209 Preston Highway. The city said the store is too close to a church and homes[,]" reports Kentucky's Courier-Journal here. This apparently is a "percentage case," which is one where the store stocks (or attempts to stock) less than 25% adult merchandise and, therefore, claims that it is not subject to the adult-oriented licensing code. Simple enough, right?

Maybe not. The court viewed the stocking method as an attempt to circumvent the law, writing:

"For example, the section of the facility that was set aside for the purpose of selling desks strains the credulity as a legitimate business enterprise; the area is clearly designed to take up space for the sole purpose of allowing Cam I to make the argument that it falls below the … principal use mandate. For example, the section of the facility that was set aside for the purpose of selling desks strains the credulity as a legitimate business enterprise; the area is clearly designed to take up space for the sole purpose of allowing Cam I to make the argument that it falls below the … principal use mandate. "

I suspect others, including Cam I, might view the stocking measure as an attempt to comply with the law.

Use caution: you're in a statutory reconstruction zone.

Gambling & stuff

2007-05-31T13:51:00.001-04:00

Gambling: "State would be winner if it legalizes the game," opines Jerome Solomon of the Houston Chronicle here. He writes, "Yes, I play poker. And like most poker players in Texas, I'm not sick, sleazy or despicable, and I am certainly no lawbreaker. Well, at times I might be. (A lawbreaker, that is)." Me, too.

Stuff: Comedian Jon Lovitz, according to CBS News online, "announced Wednesday that he has signed a contract to appear at the Sunset Strip club every Wednesday night for the rest of his life." Holy cow. That's what I call an annuity. The Los Angeles club is The Laugh Factory.

Moving the Moving Pictures

2007-05-26T10:22:00.000-04:00

The Washington Times reports here: "A D.C. Council member's proposal to allow strip clubs to relocate along the New York Avenue corridor in Northeast has angered residents and businesses who have long been promised redevelopment on the blighted gateway." Can you say, NIMBY? According to the article, "[t]he bill paves the way for the clubs to move into mostly industrial areas of Ward 5, where establishment owners have identified potential sites."

These are tough issues for all parties concerned, I'm sure.

The Government & Morality

2007-05-23T10:13:00.000-04:00

It's a debate that will never end: Should government judge morality for us? That's the topic from this op-ed recently posted on MiamiHerald.com, discussing the plight of Sherri Williams and her sex toys case from Alabama. The government (we?) routinely answers morality questions with legislation. After all, both murder and theft are widely considered immoral, and that's no doubt one reason that American governments have banned both acts with some exceptions. But I'm not sure that public morality, standing alone, supplies a rational basis for legislating when the law's proscription targets private behavior. I guess we'll have to wait and see.

Can you hear me now?

2007-05-21T18:26:00.000-04:00

This opinion from the Eleventh Circuit Court of Appeals concerns an open-atrium nightclub in Miami which, apparently, likes to play music. But the club's neighbors (or some of them) don't like to listen. The plaintiffs argued that the City's noise ordinance was facially unconstitutional. The court disagreed. If you're listening, it's "Plaintiffs 0, Miami-Dade County 1."

Tail wagging the dog

2007-05-20T18:51:00.000-04:00

"Sioux City avoids sanctions in adult business lawsuit," reported here by CBS 2 News in Iowa. The judge's ruling (which you can download here) deals with the city destroying records from closed meetings while defending itself in a lawsuit filed by Doctor John's Lingerie Boutique.

In litigation, I frequently encounter local governments which do not archive their communications. It's surprising, really. In the Information Age, saving and storing records (especially Electronically Stored Information) should be easy. So easy that many state governments, like Georgia's, require it.

Various

2007-05-16T08:14:00.000-04:00

Linked via The Legal Reader, Larry Flynt on Jerry Falwell. Another angle here by USA Today.

Strip Club Bill a Waste of Time, courtesy of Ohio's News-Herald.com. In related news, perhaps, poll shows that "[a]lmost half of Ohioans admit to visiting a strip club," as reported by the Dayton Daily News.

A state-imposed door cover charge

2007-05-13T16:14:00.000-04:00

"Strip club patrons will have to pay an extra $5 at the door, under a bill that passed the House on Wednesday," reports The Houston Chronicle here. The Texas bill targets sexually oriented businesses (SOBs). It's sponsored by freshman Democrat Ellen Cohen (who serves as president of the Houston Area Women's Center), and reportedly "would provide $18 million for sexual-assault programs." Another house Democrat, Harold Dutton, asked Cohen, "Have you been to any of these sexually oriented businesses?" Cohen's response: "No, have you?"

Just because SOBs are an easy target doesn't make this bill right. There's probably not a lick of empirical evidence to support the need for the 'sin tax,' which could present problems because the federal Constitution requires at least some evidence. A more practical question is how, exactly, the State of Texas intends to ensure compliance of the proposed cover-charge tax.

Perhaps tax auditors will work the doors on occasion?

One of the best bars in America is ...

2007-05-12T18:42:00.000-04:00

The Clermont Lounge -- an Atlanta strip club. This, as reported by the Atlanta Journal Constitution, you can read about here. The article quotes one patron as saying, "It's not just a bar, it's an institution," adding, "I think it should be on the National Register of Historic Places." As an Atlantan and a fan of 'dive bars,' I can attest that this sentiment is shared by more than a few. Clermont, along with 50-something other American bars, is featured by Esquire magazine in this month's issue.

Judge Upholds Colorado's Statewide Smoking Ban

2006-10-21T10:11:00.000-04:00

As reported here by Denver's CBS News. Smoking bans, I must confess, do not fall within the category of "sin law." I say this because the drive behind smoking bans is usually public health rather than public morality. I've written about Georgia's smoking ban in Atlanta's nightlife publication, The Hudspeth Report. You can read that article here.

Will you be arrested for playing online poker?

2006-10-16T19:27:00.000-04:00

Read Professor I. Nelson Rose's answer here. A glimpse: "I am often asked whether Internet poker is legal. The answer is probably not, but the chances of actually getting into trouble are very slim. How slim? You have a better chance of winning the final no-limit Texas Hold 'Em tournament at the World Series of Poker. After all, someone wins the WSOP each year. No one has ever been arrested, let alone convicted, for merely playing poker on the Internet."

It's also permissible to day trade -- sometimes.

Good (and bad) things come in small packages

2006-10-11T10:16:00.000-04:00

The Tenth Circuit Court of Appeals issued this opinion yesterday. The case involves a retail novelty store, Dr. John's, that sells a "range" of adult products. When the City of Roy (Utah) insisted that Dr. John's submit to its sexually oriented business (SOB) licensing scheme, Dr. John's launched a comprehensive challenge to the city's SOB ordinances. At the core of these challenges was one to the "pre-packaged studies" that local governments frequently review (or cite) in support of the need for stringent laws regulating adult entertainment. The opinion walks through several issues, but found error in only one decided by the district court: whether the ordinance was properly supported as targeting the untoward "secondary effects" adult businesses are thought to produce. The Court stated, "It is unclear from the record what evidence supporting and countering the City's rationale that the ordinance was indeed necessary to prevent these negative effects was presented to, and considered by, the district court."

If, on remand, Dr. John's succeeds in refuting the veracity and reliability of the city's "pre-packaged" studies, the remainder of this Tenth Circuit opinion might become "retroactive dicta."

Speaking of obscenity...

2006-10-09T18:52:00.000-04:00

Howard Bashman -- of How Appealing fame -- wrote an essay entitled, "Text This: Words Alone Can Violate Federal Obscenity Laws," which appears on law.com. Prompting his article is a recent decision from the Eleventh Circuit Court of Appeals where, as Bashman reports, the court "affirmed a federal criminal conviction based on a jury's finding that various offensive voicemail messages consisted of words that constituted spoken obscenities. The 11th Circuit's opinion reproduces the offending language in exacting detail, proving that what is criminally obscene when spoken as a voicemail message may not be criminally obscene when expressed in the context of an appellate court's discussion of the sufficiency of the evidence." Well said.

This opinion is bound to make waves. Stay tuned.

Should Sheriffs Chaparone?

2006-10-08T22:33:00.001-04:00

Commingling is a familiar legal concept. It often crops up in the context of fiduciary obligations, e.g., where one mixes company funds with personal funds. (BTW, that's not recommended.) But you'll be hearing more about it in the context of nude dancing. The Community Press reports here that "[a] judge has ruled in Kenton County's favor on a federal lawsuit filed two years ago alleging that the county's sexually oriented business ordinance is unconstitutional. U.S. District Judge David Bunning ruled on Sept. 30 that the county may regulate 'co-mingling' between dancers and patrons at strip clubs...." Boys, stay away from the girls. And vice-versa.

So who's in charge of enforcing this rule? Him or them?

The USSC turns away sex toy case

2006-10-02T21:40:00.000-04:00

Reuters reports here that the U.S. Supreme Court declined to grant certiorari and hear a sex-toy case arising out of Texas. "His attorney challenged the law as unconstitutional, claiming it violated the right to sexual privacy without government interference. The court, which rejected a challenge to a similar Alabama law last year, denied the appeal without any comment," reports the article.

Earlier this year I commented on that "similar Alabama law," and my comments appeared in the uber-cool Mother Jones magazine.

Check out this post, too, from the First Amendment Center on other First Amendment cases which the Supremes turned away.

In My Back Yard

2006-09-29T23:34:00.000-04:00

An enlightened community? You be the judge. This article in the Arizona Journal reports that Scottsdale residents voted "No!" on a measure that would have banned lap dances. Whodda thunk it.

Just how old are you?

2006-09-24T11:37:00.000-04:00

This is a cool site. Find out how old you are (or how young you're not) -- down to the second.

Is Store Sexually Oriented?

2006-09-22T11:19:00.000-04:00

I stumbled across How Appealing's post to this article in The Dallas Morning News. At issue is whether the store is fairly characterized as an 'adult' store, given its nondescript inventory. The City says yes; the store says no. Our law firm is litigating similar issues with increasing frequency. Local governments enjoy wide latitude (courtesy of the USSC) to treat sexually oriented businesses differently from other First Amendment protected businesses. There's of course disagreement among the Bar on whether that's an appropriate method for dealing with the "secondary effects" of adult entertainment. There's no disagreement, however, that with that power comes abuse. And now adult businesses are adjusting.

It's getting interesting.

The strip club lottery

2006-09-20T20:23:00.000-04:00

The Seattle Times reports "Hitting the Strip-Club Jackpot" here. The lesson learned: the government must be careful that laws prohibiting adult entertainment are valid before using them to close strip clubs -- or even before using them to prevent strip clubs from opening.

Bars & Poker

2006-09-18T21:00:00.000-04:00

"Gambling, drugs, sex and, of course, booze - by 1916, 23 of the 48 states, more than half, had passed local prohibitions on alcoholic beverages. It was thus not a big surprise when Prohibition was written into federal law. In 2006, bars can obviously serve booze (although in states like California, they are not allowed to let patrons smoke). But they are facing prosecution, or worse, loss of their liquor licenses, for conducting poker games," writes I. Nelson Rose for the Casino City Times here. The article highlights some quirky but surviving prohibitions against alcohol and gambling.

Eat more, drink less

2006-09-18T11:16:00.000-04:00

No, that's not advice from your dietitian; it's a mandate from one city's liquor board. "Gardel's class 'B' liquor license requires that the eatery serves food to the public, said Samuel T. Daniels Jr., chief inspector and acting executive secretary of Baltimore's liquor board. But on a visit in February, Daniels found that the majority of tables had been removed to provide dance space and 'no food that could even accomplish a dish listed on the menu,' was found in the kitchen." Read the Baltimore Business Journal's story here.

A food-to-drink sales requirement is not an uncommon feature of liquor laws. It is somewhat unusual to see a ratio requirement enforced by police officers on a nightly basis, though. Usually a government finance department will audit the business's sales over an objective period of months. After all, some nights you just can't sell a lot of food.

Dormant Commerce Clause v. Twenty-first Amendment

2006-09-11T19:39:00.000-04:00

Today the Fourth Circuit Court of Appeals decided a wine-shipping case in Brooks v. Vassar. The opinion begins:

This appeal involves a facial challenge, under the dormant Commerce Clause of the United States Constitution, to various aspects of Virginia’s Alcoholic Beverage Control Act ("ABC Act"), Va. Code § 4.1-100 et seq., which generally prohibits the importation, distribution, and sale of wine and beer in Virginia except through a regulated, three-tier structure. We sustain the constitutionality of:

(1) Virginia Code § 4.1-310(E), which provides an exception to the three-tier import restriction for consumers who personally carry into Virginia no more than one gallon (or four liters) of alcoholic beverages for personal consumption; and

(2) Virginia Code § 4.1-119(A), which authorizes stateowned and -operated ABC stores to market and sell only wine produced at Virginia "farm" wineries.

Accordingly, with respect to these two aspects of the ABC Act, we reverse the judgment of the district court, which concluded that these provisions unconstitutionally discriminated against interstate commerce.

With respect to challenged provisions of the ABC Act that permit in-state producers of wine and beer, but not out-of-state producers, to bypass the three-tier structure and sell directly to in-state retailers and consumers — Virginia Code §§ 4.1-112.1(B); 4.1-207(4),(5); 4.1-208(1),(7) — we conclude that Virginia legislative amendments enacted while this appeal was pending render the challenge to those
provisions moot and therefore bar us from considering the district court’s order and the amended provisions. Accordingly, with respect to them, we dismiss the appeals, vacate the district court’s judgment, and remand for dismissal of the claims challenging those provisions.

Finally, with respect to the district court’s conclusion that the plaintiffs in this case are entitled to maintain their action under 42 U.S.C. § 1983 and therefore qualify for an award of attorneys fees if they are the prevailing party, as provided by 42 U.S.C. § 1988, we affirm.

A new ending for Internet gambling?

2006-09-09T12:40:00.000-04:00

"The future of all unlicensed forms of internet gambling - from poker to horse racing bets - in at least seven US states was under threat last night after it emerged that the arrest of Peter Dicks, Sportingbet's British chairman, on Thursday morning at New York's JFK airport was linked to Louisiana state's wide-ranging laws against gambling by computer," reports UK's Guardian Unlimited here. You can also read about it here and here.

Check out Sportingbet.com for yourself. It's a big company.

Bye Bye Tax-y-ness

2006-09-08T12:12:00.000-04:00

Mission accomplished: the town closed its strip club. But "[l]ongtime residents are now finding themselves in the bizarre dilemma of giving thanks for the 1999 closure of the notorious Payne Reliever strip club but missing the steady revenue it produced for the neighborhood," reports TwinCities.com here. Now the town can scarcely afford its annual 4-day downtown bash.

The former club, Payne Reliever, presumably was named for its location: Payne Avenue. I love it. Here's a list of cars, candy bars and tools that would also make good names for a strip club (courtesy of Yankee Pot Roast).

Gotta be careful when buying a strip club.

For all you do ... this Bud's for view

2006-09-06T20:59:00.000-04:00

"Anheuser-Busch said it would launch a broadband video site, Bud.TV, the latest advertiser to try its hand at branded entertainment online," reports AdWeek here. It's no revelation that TV is brought to you by sex, drugs and rock-n-roll. What'll be interesting is how, if at all, the government attempts to regulate the Net.

A funny Budweiser commercial.

'Porn' war hits heartland

2006-09-05T21:43:00.000-04:00

"[P]rotesters are posted outside the Lion's Den around the clock, seven days a week. 'No Porn in Uniontown,' reads one sign, condemning the adult store's selling of sex toys and sexually explicit videos and DVDs. 'God is watching you,' proclaims another." The Courier Journal also reports that protesters snap pictures of vehicles entering the parking lot of the Lion's Den and contact companies whose names they see on pickups and semis. They also quote the Bible to people who stop to argue. Can you say, culture war?

And on the Seventh Day ... in Wichita

2006-09-04T21:59:00.000-04:00

The Wichita Eagle reports here: "It's getting easier for Wichita-area residents to buy liquor on Sundays -- unless they happen to shop in Wichita. At least 11 area communities have approved or are considering Sunday sales of packaged beer, wine and liquor. Statewide, at least 54 cities have approved Sunday sales."

My home state (Georgia) has a Sunday-Sales ban in place. Most of Georgia's local governments, however, have opted out of the statewide Sunday-Sales ban on by-the-drink (or consumption-on-premises) sales, a voter option which is provided under this statute. As for retail package (or take-home) sales, there's no "opting out'; no retail package sales are allowed on Sundays in Georgia. Better plan that Super Bowl party!

Here's a handy overview on the 50 States' alcohol laws -- courtesy of Wikipedia.

Nebraska Attorney General says casino debate needs review

2006-09-03T13:21:00.000-04:00

"Attorney General Jon Bruning says the conflict over an initiative to legalize up to three casinos in Nebraska is 'ripe for determination' before the November election," as reported here by the Hemscott.com. Anyone care to wager on whether the Nebraska Supreme Court takes the AG's position?

Unrelated: check out a Technorati Profile

Lawmakers work to fix strip club loophole

2006-09-02T00:37:00.000-04:00

"Memphis lawmakers said Friday they want to fix a loophole in the law that let a strip club open, even though city and county attorneys tried to prevent it," reports WMCTV.com. Read more about it here.

A law professor's blog

2006-08-31T20:50:00.000-04:00

Here's an interesting Professor-of-law blog (plawg): Leonard Link. The plawg bills itself as, "Reporting and commentary on law, music, film and current events by New York Law School Professor Arthur S. Leonard, with a special emphasis on Sexuality & the Law." Interesting stuff. I really enjoy Mr. Leonard's analysis on First Amendment decisions, such as the one here. Keep up the good work!

Wine Tasting, not Wine Wasting

2006-08-30T20:49:00.000-04:00

A wine retailer (Bruce Gibson) in Harwich, Massachusetts "was before selectmen Monday night to answer charges that on two occasions, July 19 and Aug. 2, he service [sic] wine outside the license premises, and on those occasions served more than one ounce of the libation, the maximum limit for wine tastings allowed by law," as reported here. Harwich Port had a couple of music strolls near his business.

It sounds like a neat event -- at least the August 2 one. According to the article, "Selectman Larry Cole said he would step down from the hearing because he was 'complicit' in this issue, having accepted a glass of wine from Gibson during the Aug. 2 event. Later in the hearing, Selectman Ed McManus removed himself from the hearing as well, stating he too had accepted a glass of wine from Gibson at the Aug. 2 event." Said Gibson, "It's not in my interest to give way a large amount of product."

1 oz.? Is that enough wine from start to finish?

Anti-gambling laws

2006-08-28T23:02:00.000-04:00

Check out Ed Brayton's post on Dispatches from the Culture Wars, and this take on anti-gambling legislation: "[the government] spend[s] millions promoting games that are purely games of chance - lotteries - while sending SWAT teams to stop people from playing poker, a game of skill. Apparently, it's only immoral and dangerous to bet against one another in a game where your skill has some control over the outcome; it's perfectly fine to bet against the government in a game that they are guaranteed to win." Mr. Brayton's post cites The Agitator's link on the same subject. (Good stuff.)

The operative word: millions.

PA Pro-Family Group seeks to reinstate law regulating nude dancing

2006-08-27T15:45:00.000-04:00

The Third Circuit Court of Appeals decision at the center of the AFA of PA's political firestorm is available here. According to the AFA article (click blue title above), "'The statute that was struck down last Tuesday had been in effect for over fifty years with only minor changes. Apparently the judges on this three-judge panel haven’t taken a close look at the enforcement history of this law being restricted to so-called adult businesses,' stated Gramley. 'This is yet another example of pornographers hiding behind the First Amendment, completely distorting what the Founding Fathers intended by it.'”

With due respect to Mr. Gramley, I suspect that the judges have taken a close look.

Just type "adult entertainment" and ...

2006-08-27T11:43:00.000-04:00

you'll be directed to my dog. Huh?! Well, not exactly. If you go to Best of the Web Blogs, then search for "adult entertainment" (as of today), your search result will hit a link to Oliver. Little o is 2 1/2 years-old, which is about 18 in human years, I think. (According to this site, it's closer to 23 human years.) That's too young. I'm not entirely comfortable that o's associated with that kind of entertainment.

18 U.S.C. § 2257's creating wake(s)

2006-08-25T19:10:00.000-04:00

"New federal regulations are changing the way gay men post nude photos of themselves online and may be curtailing the supply of adult entertainment available on the web," reports Southern Voice Online here. The new federal statute: § 2257. Intended to curb child pornography, this law requires that sites and stores offering pornographic material to thoroughly document both the ages and identities of all people featured in the explicit imagery. In practical application, though, this code section continues to bewilder the adult entertainment industry.

Maybe that's the point.

Welcome to the Hotel Porn-is-for-ya

2006-08-23T23:03:00.000-04:00

"A coalition of 13 conservative groups - including the Family Research Council and Concerned Women for America - took out full-page ads in some editions of USA Today earlier this month urging the Justice Department and FBI to investigate whether some of the pay-per-view movies widely available in hotels violate federal and state obscenity laws," as reported here by The Cincinnati Post. Of course the biggest purveyors of pornography in the country are -- you guessed it -- the telephone and cable companies. They have BIG contracts with networks. And video suppliers have BIG contracts with hotels. According to Free Speech Coalition's Web site, the adult industry publication Adult Video News reports that hotel room "Video On Demand" revenues totaled $500 million in 2005. In 2004, almost 40% of the nation's hotels offered adult movie options. Read more about that here.

What does all this mean? I don't know. But I'm thinking that, until pay-per-view becomes free-per-view, the federal and state pornography squads will focus their efforts elsewhere.

On (and beyond) the waterfront

2006-08-22T19:25:00.000-04:00

News from South Carolina: "Horry County pressed forward Monday on the state's first casino boat tax despite a legal challenge from a boat operator. The tax could go before County Council next month and, if passed, net millions of dollars in annual revenue from two gambling boats in Little River, according to the council's Administration Committee," reports HeraldToday.com here. Though the boat company appears willing to pay a "boarding fee," it isn't racing to pay revenue taxes. Its argument, which seems logical, is that gambling is illegal in South Carolina and, therefore, the state cannot profit from gambling which occurs on international waters. (Editor's note: Other than a couple of deadlines, I know nothing about tax.)

We don't like your billboards

2006-08-21T23:47:00.000-04:00

"A two-year-old state law banning sexually suggestive billboards along Missouri highways is unconstitutional, a federal appeals court panel ruled Monday," reports Law.com here. It looks like Central Hudson Gas & Electric Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980) got in Missouri's way. But don't take my word for it. You can read the opinion here.

Can 'the slots' be mastered?

2006-08-20T20:41:00.000-04:00

Apparently maybe. The www.MiamiHerlad.com reports here about the Chuck E. Cheese exception to Florida's gambling statute, which allows coin-operated games if a skilled player can manipulate the outcome. So can you master the one-armed bandit? It's a fact, maybe -- just check it out here on Wikipedia.