House Bill 59′s origins in Lexington’s squabbles over strip clubs

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Come Again?
Boner Bill is Trojan Horse mounted by Lexington’s ‘Family Foundation’
By Alex De Grand


Is that an attempt to crack down on nude clubs in your pocket, or are you just happy to see me?

House Bill 59, dubbed by some “the Boner Bill” because its original language would outlaw erections in public, has its origins in Lexington’s squabbles over strip clubs.

“We agree with free speech, but think there are limits,” Kent Ostrander said of his group’s efforts to stop adult entertainment businesses that erode the city’s moral environment, according to him.
Introduced in this legislative session by Shelbyville Republican Gary Tapp, the bill broadly defined nudity as “the showing of the human male or female genitals, public area or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple or the showing of the covered male genitals in a discernible turgid state.”

Tapp said some House members (so to speak) had problems with including a bulge in the pants under the state’s definition of nudity. Consequently, he said, the amended bill omitted it.

But criminalizing a hard-on was not the point of the bill.

The bill, which died in the House during this session, was aimed at nudity in public places including strip clubs, Tapp said.

A memo from the Lexington-based Family Foundation explains the rationale behind the proposed legislation when it was submitted in the 1998 legislative session by Larry Brandstetter, the state representative from Lexington at the time.

The Family Foundation describes itself as a non-profit, educational organization focused on public policy issues that affect the family. (On other issues, the group’s materials suggest that they have taken positions against abortion rights and protections for homosexuals.)

“The Problem: Cities such as Lexington are increasingly inundated with ‘adult entertainment’ businesses and find it difficult to rid themselves of them by local ordinances once they are established,” the foundation’s executive director, Kent Ostrander, wrote to Brandstetter.

“The Solution: Pass a state public decency law that would 1) focus on the essence of their business (public nudity), 2) leave the specifics to the city or municipality for regulatory ordinances, and, at the same time, 3) allow for genuine artistic expression,” Ostrander’s memo continued.

Ostrander enclosed an Indiana decency law upheld by the U.S. Supreme Court and a Tennessee statute modeled after the Hoosier state’s success. These state laws included clothed, but discernible erections under the definition of nudity.

“I am convinced that this legislation will: 1) ‘get something done’ for the many Lexingtonians who are concerned about their city; 2) allow other smaller communities to protect themselves from the deep pockets of the out-of-state interests that are trying to proliferate these establishments at Kentucky’s expense; and 3) for the first time, establish a straightforward public decency standard for Kentucky,” Ostrander wrote in the memo.

The Indiana statute has apparently inspired a bill with a similar definition of nudity, including the prohibition of erections in public, in at least other state, Mississippi.

Asked last week to comment on the status of the Kentucky version, Ostrander said that although the bill did not pass in 1998 or in 2000, it is making “good progress.”

The bill passed the House in 1998 but stalled there in 2000 due to an unrelated political feud between Tapp and the House leadership, Ostrander said.

Tapp did not comment as to why the bill died in this session, but said he would probably introduce the bill again in 2002.

Ostrander said the legislation would be an important tool for fighting adult clubs given the slow progress of local ordinances to address the issue. Lexington passed a measure aimed at the clubs three years ago and it has been tied up in the courts ever since.

The Lexington ordinance sought to impose $6,000 licensing fees on the bars as well as $100 licensing fees on dancers and other club employees.

Totally nude dancing and physical contact with patrons are prohibited under the ordinance.

C. Michael Hatzell, a Louisville attorney representing one of the clubs challenging the ordinance in court, said the prospect of a state law “does present some challenges.”

However, he said, there have been court decisions since the opinion in the Indiana case that indicate it may not be the last word on nudity laws.

The 1991 Indiana case, Barnes v. Glen Theatre Inc., concerned two adult entertainment businesses and an erotic dancer who sued to prevent enforcement of the state’s public indecency statute as it applied to nude dancing.

In a 5-4 decision, the Supreme Court upheld the statute.

But justices writing in the majority had different reasons for reaching their conclusion. For example, several justices justified the statute by arguing the government interest in promoting morality was unrelated to the suppression of any expression while another arrived at the conclusion by rejecting outright the contention that nude dancing is entitled to First Amendment protection.

Hatzell pointed to a 1994 case, Triplett Grille Inc. v. City of Akron, in which the Supreme Court’s fractured ruling was critical to striking down a decency law in Ohio.

The City of Akron, using language similar to that of the Indiana statute (including defining discernible stiffies as “nudity”), attempted to close down a club called The Back Door that had nude dancing entertainment.

But the U.S. Court of Appeals for the Sixth District ruled against the city, arguing the Barnes case is a precedent only to the extent that the five justices could agree.

The proposition that the enforcement of morality is a proper basis for limiting freedom of speech did not win majority support, the appeals court held.

Rather, the appeals court ruled, the majority of justices agreed a nudity law is justified in terms of preventing negative secondary effects of the adult entertainment such as increased crime and decreasing value of surrounding property.

The Akron nudity law was overly broad and did not consider issues of artistic, literary and political merit, the appeals court held.

But Ostrander said the bills sent to the Kentucky Legislature anticipate those concerns and make exceptions for productions performed in a theater by theatrical or musical companies and have “serious artistic merit.”

“We agree with free speech, but think there are limits,” Ostrander said of his group’s efforts to stop adult entertainment businesses that he believes erode the city’s moral environment.

Prohibiting strip clubs is a permissible restriction on the First Amendment in the same way it is illegal to yell “fire” in a theater, he said.

Are those exceptions and that reasoning strong enough to withstand a court challenge? Hatzell expressed doubts they are.

But with the state bill dead for this session and the Lexington ordinance mired in the courts, the public will have to wait and see.



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