10-11-2005, 10:12 PM
Oregon justices defeat efforts to limit sex shows
The Oregon Supreme Court on Thursday struck down an ordinance regulating nude dancing and overturned a Roseburg club owner's conviction for putting on a live sex show, saying both violated the state's constitution.
The court emphatically rejected the state Justice Department's plea to trim what are considered the nation's most expansive protections of speech and expression.
"I don't think it merely reaffirms the Oregon court's historic interpretation of free speech, I think it strengthens it," said Roy Pulvers, a Portland attorney and longtime court observer.
For more than two decades, the Oregon Supreme Court has taken a near-absolute approach to a wide range of laws restricting speech, striking down limits on campaign contributions as well as virtually any attempt to rein in the sex industry.
That approach has, among other things, nurtured an expansive adult entertainment industry, not just in Portland and other large metropolitan areas, but also in smaller cities such as Roseburg and Nyssa, where Thursday's rulings began.
Justice Michael Gillette, who wrote both opinions, delved deep into the intent of the state's constitutional framers. He wrote that the idea of broad free speech rights "held particular appeal for the Americans participating in the great westward movement, who often had moved west to avoid the constraints of settled society and tended to place an especially high value on individual liberty."
Justice Paul J. De Muniz dissented. In the live sex show case, De Muniz wrote that ". . . the idea that the Victorian-era drafters and ratifiers of the Oregon Constitution sought to bring public masturbation and sexual intercourse within the purview of constitutional free-speech protection is difficult to comprehend."
De Muniz also wrote that the constitution should allow a city to require dancers to stay 4 feet from customers.
"Limiting proximity of the dancers is simply not limiting expression," he wrote.
De Muniz's decision largely reflected the Justice Department's position.
"The attorney general doesn't believe that the founders of Oregon's constitution intended to prohibit the regulation of public sexual conduct by our state's governing bodies," said spokesman Kevin Neely.
But if the court's 5-1 decisions solidified one aspect of Oregon's uniqueness, experts were scratching their heads over one section.
The court ruled that live sex shows are protected free expression, but it also upheld the promoting prostitution conviction of Roseburg club owner Charles R. Ciancanelli because he profited from having two women perform sex for money.
Dave Fidanque, executive director of the American Civil Liberties Union of Oregon, said the ruling properly distinguished between legitimate expression -- performing -- and illegal conduct -- having sex for money.
"That should alleviate a lot of the concerns that any Oregonians might have about how far things might go," Fidanque said.
At the same time, he added, the rulings reaffirm "that Oregonians will continue to be able to decide for themselves what they want to read, see and hear rather than have those decisions made by government officials."
But others questioned the court's distinction.
Would a live sex show be OK if nobody paid the performers? What about tips? And if paying two people to have sex on stage is promoting prostitution, what about paying people to make a porn movie? What about showing a porn movie?
Charles F. Hinkle, who filed friend of the court briefs for the ACLU, The Oregonian and several other media outlets, said the ruling seemed to set up a conflict between an earlier Supreme Court decision allowing the sale of adult materials.
"If you can sell pornography and films of people engaged in sex, it is inexplicable why it is that you cannot sell access to the live show," Hinkle said.
The ruling could significantly affect the sex industry, but attorneys Thursday were scrambling to figure out how. Lake James H. Perriguey, who filed a friend of the court brief on behalf of the Portland Area Privacy Alliance, said he wondered whether customer tips could turn an otherwise protected sex show into an act of prostitution.
Perriguey also noted that Oregon defines prostitution as being an act between two people, which would appear to clear the way for some types of sex shows.
"I do think masturbation shows are in," Perriguey said. "But two-girl shows involving a fee are definitely out."
The Nyssa case involved the owners of Miss Sally's Gentlemen's Club. They were prosecuted for violating a city ordinance that required dancers to stay at least 4 feet away from patrons.
The City Council adopted the ordinance several years ago after complaints that residents from nearby Idaho, which severely restricts adult businesses, were coming to Nyssa to see nude dancing.
James Westwood, who represented Nyssa, said the court should have allowed Nyssa's reasonable restrictions.
"Reasonability is the watchword," Westwood said. "The reason the city did it is because there had been historically illegal conduct going on, and they wanted to prevent that."
Laura Graser, who represented club owners Sally A. Dufloth and Duane L. Smith, said the prosecution of her clients and other subsequent city actions shut down Miss Sally's.
©2005 The Oregonian
The Oregon Supreme Court on Thursday struck down an ordinance regulating nude dancing and overturned a Roseburg club owner's conviction for putting on a live sex show, saying both violated the state's constitution.
The court emphatically rejected the state Justice Department's plea to trim what are considered the nation's most expansive protections of speech and expression.
"I don't think it merely reaffirms the Oregon court's historic interpretation of free speech, I think it strengthens it," said Roy Pulvers, a Portland attorney and longtime court observer.
For more than two decades, the Oregon Supreme Court has taken a near-absolute approach to a wide range of laws restricting speech, striking down limits on campaign contributions as well as virtually any attempt to rein in the sex industry.
That approach has, among other things, nurtured an expansive adult entertainment industry, not just in Portland and other large metropolitan areas, but also in smaller cities such as Roseburg and Nyssa, where Thursday's rulings began.
Justice Michael Gillette, who wrote both opinions, delved deep into the intent of the state's constitutional framers. He wrote that the idea of broad free speech rights "held particular appeal for the Americans participating in the great westward movement, who often had moved west to avoid the constraints of settled society and tended to place an especially high value on individual liberty."
Justice Paul J. De Muniz dissented. In the live sex show case, De Muniz wrote that ". . . the idea that the Victorian-era drafters and ratifiers of the Oregon Constitution sought to bring public masturbation and sexual intercourse within the purview of constitutional free-speech protection is difficult to comprehend."
De Muniz also wrote that the constitution should allow a city to require dancers to stay 4 feet from customers.
"Limiting proximity of the dancers is simply not limiting expression," he wrote.
De Muniz's decision largely reflected the Justice Department's position.
"The attorney general doesn't believe that the founders of Oregon's constitution intended to prohibit the regulation of public sexual conduct by our state's governing bodies," said spokesman Kevin Neely.
But if the court's 5-1 decisions solidified one aspect of Oregon's uniqueness, experts were scratching their heads over one section.
The court ruled that live sex shows are protected free expression, but it also upheld the promoting prostitution conviction of Roseburg club owner Charles R. Ciancanelli because he profited from having two women perform sex for money.
Dave Fidanque, executive director of the American Civil Liberties Union of Oregon, said the ruling properly distinguished between legitimate expression -- performing -- and illegal conduct -- having sex for money.
"That should alleviate a lot of the concerns that any Oregonians might have about how far things might go," Fidanque said.
At the same time, he added, the rulings reaffirm "that Oregonians will continue to be able to decide for themselves what they want to read, see and hear rather than have those decisions made by government officials."
But others questioned the court's distinction.
Would a live sex show be OK if nobody paid the performers? What about tips? And if paying two people to have sex on stage is promoting prostitution, what about paying people to make a porn movie? What about showing a porn movie?
Charles F. Hinkle, who filed friend of the court briefs for the ACLU, The Oregonian and several other media outlets, said the ruling seemed to set up a conflict between an earlier Supreme Court decision allowing the sale of adult materials.
"If you can sell pornography and films of people engaged in sex, it is inexplicable why it is that you cannot sell access to the live show," Hinkle said.
The ruling could significantly affect the sex industry, but attorneys Thursday were scrambling to figure out how. Lake James H. Perriguey, who filed a friend of the court brief on behalf of the Portland Area Privacy Alliance, said he wondered whether customer tips could turn an otherwise protected sex show into an act of prostitution.
Perriguey also noted that Oregon defines prostitution as being an act between two people, which would appear to clear the way for some types of sex shows.
"I do think masturbation shows are in," Perriguey said. "But two-girl shows involving a fee are definitely out."
The Nyssa case involved the owners of Miss Sally's Gentlemen's Club. They were prosecuted for violating a city ordinance that required dancers to stay at least 4 feet away from patrons.
The City Council adopted the ordinance several years ago after complaints that residents from nearby Idaho, which severely restricts adult businesses, were coming to Nyssa to see nude dancing.
James Westwood, who represented Nyssa, said the court should have allowed Nyssa's reasonable restrictions.
"Reasonability is the watchword," Westwood said. "The reason the city did it is because there had been historically illegal conduct going on, and they wanted to prevent that."
Laura Graser, who represented club owners Sally A. Dufloth and Duane L. Smith, said the prosecution of her clients and other subsequent city actions shut down Miss Sally's.
©2005 The Oregonian