June 2013 Bar Bulletin
 
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June 2013 Bar Bulletin

Go-Go Dancing, Tape Measures and the First Amendment

By Christina Schuck

 

If you are thinking of opening and licensing a go-go dancing business, the first thing you need is a good tape measure, and not for purposes of sizing up the employees.

For example, a King County ordinance requires all nude entertainment to be performed on a stage 18 inches high and six feet from the nearest patron.1 Bellevue requires adult cabaret performances to take place at least eight feet from all areas of the premises to which members of the public have access.2 Each cabaret must also have a 2-by-2-foot sign with at least 1-inch letters advising patrons what behavior is not permitted by entertainers (e.g., not permitted to appear semi-nude or nude, except on stage).3 Everett requires dances, performances or exhibitions to be performed at a "torso-to-torso distance of no less than four feet."4

In October 2005, the Seattle City Council passed its own (now infamous) 4-foot rule - requiring the adult entertainers to remain at least four feet from any patrons. Seattle took this ultimately ineffective action after its 17-year moratorium on new strip clubs was found unconstitutional.5

Why the focus on distance requirements in adult entertainment businesses? Importantly, nude and/or erotic dancing is protected by the First Amendment and any regulation must pass constitutional muster. Unless activity is obscene (and thus unprotected), the outright banning of adult entertainment businesses constitutes an impermissible restraint of speech based upon its content, presumptively violating the First Amendment.6

In contrast, content-neutral restrictions that regulate the time, place and manner of the speech or expression are constitutional, so long as they are designed to serve a substantial governmental interest and do not unreasonably limit "alternative avenues of communication."7

Regulations concerning the proximity of dancers to patrons are content-neutral because they are not directed at the content of the expression, but instead at the secondary effects of the adult entertainment establishments. These content-neutral regulations also have been determined to serve a substantial governmental purpose.8

To establish a substantial governmental interest, cities are allowed to rely upon the experiences and detailed findings of other cities. New studies are not necessary so long as the studies are relevant to the problem the ordinance the other city is addressing.9 In Renton v. Playtime Theatres, the U.S. Supreme Court held Renton was allowed to rely upon the studies produced by Seattle to support its zoning ordinance.10

Cities enacting distance requirements have supported them with their own detailed studies or by citing the studies of other cities. For example, Federal Way supported its 4-foot rule based upon "the fact" that a closer proximity between entertainers and patrons facilitates improper touching, assault of the entertainers and prostitution.11 In doing so, the Federal Way City Council not only reviewed police reports and criminal citations for prostitution related to adult-use businesses, but also undercover videotapes of table dances.12


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