This was going to be one of those boring report-on-the-court-decision articles. You know. The kind with fine point analysis and dry “educational value” for the constitutionalists among us to ponder. But, sometimes when you review available court decisions, an idea jumps up and bites you and you find yourself silently mouthing “What?”
Here’s the backdrop. Last Thursday a three judge panel of the Fourth Circuit Federal Court of Appeals unanimously ruled that Virginia’s law prohibiting the sale of hard liquor in strip clubs was constitutional. The owner of three strip clubs in Richmond and Springfield had challenged the law on First Amendment grounds. The court found that there was good reason for the state to allow beer and wine to be served but prohibit hard liquor. Ok, fine, dumb law, but First Amendment issue? Really? What could it be? Establishment of religion…free exercise thereof…free speech (“Hey, barkeep, shot o’ Jack”)…free press…right to peaceably assemble?
The AP story then goes on to regale its readers with the details. Seems the Papermoon Clubs feature exotic dancers wearing G-strings and pasties. Stop.
Before getting further along, you need to know that I don’t like strip clubs. It’s not that I have anything against people getting naked. Walk your dog naked if you want to. But, there’s something about strip clubs that bothers me. Maybe it’s the atmosphere, maybe it’s the clientele, maybe it’s the reflection on the seamy side of life or the exploitation of an entire gender, maybe it’s the whole idea that they exist. I just don’t like ‘em.
Back to the story. G-strings and pasties; isn’t that just a little “50’s”, almost quaint? The civil libertarian lawyer in me claws at my brain. If you want a good First Amendment free expression, claim, the issue isn’t gin and tonic; it’s G-strings and pasties. Now I understand there’s more profit in a bottle of vodka than there is in “artistic freedom.” [The court noticed that too]. Which brings me to the part for the constitutionalists.
You see, for decades strip clubs have been, more or less successfully, litigating statutes and regulations requiring G-strings and pasties. And, for just as long, courts in jurisdictions across the country have upheld bans on liquor in strip clubs. So, if your goal is to make a constitutional argument about selling liquor, throw in the artistic expression argument, even if you really don’t care about that part. Whining that “I want to sell highballs and they won’t let me” isn’t a Constitutional claim. The liquor regulations in question have specific language on what dancers may or may not expose. Those regulations were not directly attacked in Papermoon’s challenge. There was only an indirect vagueness challenge to the language…and, believe me, it isn’t vague.
So what’s the point of all this? That people will sue over anything. That people will try to use, and expand, the Constitution in the most interesting, not to mention self serving, ways. And, let’s face it, some things just don’t violate your constitutional rights. As the Fourth Circuit three judge panel put it,
“The risk that dancers at clubs like Papermoon will be “chilled” into donning more clothing than the law requires is slim indeed.”
Seriously. Do you ever get the impression that everyone with a self serving interest or a political agenda thinks the Constitution is his/her lollipop to be licked as s/he wants to lick it? Businesses lick it one way; unions lick it another way; conservatives lick it so it leans right; liberals lick it so it leans left. And some politicians just want to put it in a drawer and hide it from the kids.
Rant over. The court’s written opinion is here.
Cross posted at Elijah’s Sweete Spot.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.