Two years ago, in the sleepy border town of Nyssa, city council members decided to crack down on stripping. Angered that businessmen from Idaho were hopping the Oregon border to enjoy the bare-all allowances at Miss Sally's Gentlemen's Club, the Nyssa city council members enacted an ordinance outlawing dancing within four feet of patrons. At first blush, such a restriction may seem like a minor concession. But in a state where First Amendment allowances for nude dancing are about as wide as the imagination permits, it set off a fight to the finish.
The strip club sued, and last April at the Oregon Court of Appeals, surprisingly lost. And now, as a lawsuit between the city and the strip club moves closer to its final showdown in Salem--at the Oregon Supreme Court--the so-called "Nyssa case" is poised to become an even bigger deal.
The ruling handed down last spring by the Oregon Court of Appeals shocked strip club owners and constitutional lawyers alike: It basically stated that cities and municipalities had the right to regulate adult entertainment. In particular, it leaves the prolific stripping industry in Portland vulnerable to the morality of city council, who could potentially pass regulations determining how "nude" dancers can be, how close patrons can stand, and where strip clubs are to be located.
So far, most cities--including Portland--had sat by quietly, waiting patiently for the wheels of justice to turn and giving no indication whether they would jump on the regulation bandwagon.
But last Wednesday, council member Jim Francesconi helped push through a vote that will allow the city attorney to draft an amicus brief favoring the City of Nyssa. (An amicus brief has no real legal implications, but is simply an advisory paper filed with the justices to help them understand the city's position and policy considerations of the pending case.) Three other council members joined Francesconi in requesting that the city attorney draft and submit the amicus brief.
The vote to draft an amicus brief is also salient because it tips city council's hand and indicates that City Hall may be willing to clamp down on strip clubs, if the Supreme Court affirms the case.
"[A ruling for Nyssa] could provide [Portland] city council some land use regulation over adult entertainment businesses," explained Michael Harrison, a staff member for Francesconi. Harrison did not elaborate on what type of zoning requirements city council may push for, but did add, "48 other states currently have the ability to zone [clubs] away from residential areas."
Although the case is not scheduled to be heard until September, the latest move ups the ante. Strip club owners have already filed their own amicus brief in February, but now understand they may stand to lose more than they expected. Even so, Claude DaCorsi, the founder and president of the Association of Club Executives (ACE), an organization that lobbies for free speech allowance, was not completely alarmed at city council's latest move.
"I'm surprised that it took them this long," quipped DaCorsi. "[Stripping] may not be the most moral business," he went on, "but it is the right to express yourself. If this, then what's next?"
DaCorsi suspects that politics may be more at play than real concerns over morals and laws. DaCorsi pointed out that Francesconi has indicated he may seek the mayoral election next summer. DaCorsi believes the council member may be trying to make a name for himself by going after the stripping industry. (Francesconi's office assured that regulating strip clubs is not a new interest, and that the council member is responding to longstanding concerns from constituents.)
DaCorsi also cautioned that attacking the strip industry would be a wrong move. "I can't see anyone winning when alienating 10 to 12 thousand people," DaCorsi said, referring to the prolific adult-entertainment industry in Portland. "It's political death."