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Court of Appeals Kicks Hole in Free-Speech Laws

It's not a statistic that the Chamber of Commerce likes to announce--allegedly Portland has the highest number of strip joints per capita in North America. But it is a factoid that even the most prudish can take pride in: the prevalence of strip clubs is due to an extremely liberal free-speech clause in the Oregon Constitution and a series of legal cases upholding a stripper's right to bear all.

But last week, a decision by the Oregon Court of Appeals put those freedoms in danger when they declared that local municipalities and cities may restrict when and how strippers can perform. The fallout from the legal decision, believe legal scholars and strip club owners alike, may rein in onstage stripping throughout Oregon.

The case came from the small eastern border town of Nyssa, Oregon. In 1998, the Miss Sally's Gentleman's Club opened in Nyssa and quickly began to attract busloads of men from Idaho, where laws regulating stripping are much stricter. Concerned about their town's moral tenor, Nyssa's city council hoped to curtail stripping. They helped sponsor a ballot measure during the 2000 elections that would have rolled back free speech allowances in Oregon. When that voter initiative failed, they put in place an ordinance that said patrons must be at least four feet away from nude dancers.

It was a remarkable law because traditionally in Oregon, stripping has fallen within the protective embrace of free-speech laws. Unlike neighboring states that have local ordinances and state laws demanding that strippers wear G-strings, pasties, and otherwise limit their nudity, Oregon has wildly permissive laws, stopping just short of live-sex shows. Regardless, Miss Sally's was fined $185 for violating the Nyssa city ordinance. They quickly contested the fine in court and lost.

Now, the tug-of-war over morality in Nyssa may determine the scope of free speech for the rest of the state. In effect, say legal scholars and strip club owners, the Court of Appeals has imported 19th Century morality from Eastern Oregon to regulate 21st Century practices for the whole state.

"With their ruling, [the Court of Appeals] seems to be thumbing their nose at years of precedence," explained a booker for a large strip club in Portland. "If there's a silver lining, it's that this case almost guarantees the Oregon Supreme Court will hear the arguments and make a decision." Already, strip club owners and attorneys are preparing to appeal the decision to the Oregon Supreme Court. The booker added optimistically, "We all feel that the Supreme Court will make the correct decision, upholding Oregon's strong free expression rights."

What has particularly disturbed club owners and legal scholars is the rationale the court used to reach their verdict. It is a well-established legal principle that free speech may be limited if there are compelling reasons. For example, it is commonly agreed that sex shops may not be within 1000 feet of an elementary school. But instead of considering so-called "public safety" issues, the court used a 19th Century Oregon law that bans public nudity to uphold Nyssa's restrictions on stripping.

Three judges dissented against the decision. Writing a tersely worded rebuttal, Justice David Schuman all but shouted down the logic of his brethren. Calling their logic a "smoke screen to ban expression that, for one reason or another, they do not like," Schuman derided the decision as an attack against free speech.

The other judge to write a dissent, Justice Rex Armstrong, also raised concerns about the eventual scope of this ruling. "If the majority is correct," he wrote, "then [the Oregon Constitution] permits the state to prohibit all nudity in all live performance. That means, of course, that plays such as Hair and Oh! Calcutta! and the current Broadway production of The Graduate would be subject to prohibitionAs things stand now[the Oregon Constitution provides] no protection against restrictions on the use of nudity in live expressive work. That makes no sense."

It is believed the case will be appealed to the Oregon Supreme Court.

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