SPOKE – “Community standards,” like the “reasonable man,” is a legal fiction intended to reflect a perceived “average” in a given community. And in theory a jury (if not a judge) drawn from the community itself can intuit if not articulate (cf. Justice Stewart’s famous comment) what those standards are. The “reasonable man” is not you or your Muslim neighbor; it’s the response of the average person in your community. Same with community standards.
I don’t think this is as difficult in practice as it might appear in theory. I don’t think you’d get much argument about the propriety of full-frontal nudity in Assboink, Idaho. The community standards are often pretty clear. As with all subjective (or quasi-subjective) standards, it’s the closer cases that are problematic: Pasties are okay but nude breasts are not? Why?
Two reasons. First, because time, place and manner are recognized restrictions to our right to free speech; geographical location isn’t. Second, because the time, place and manner restrictions exist so as to limit the impact your exercise of your rights on the rights of others, e.g., you can’t march down 5th Avenue to protest on a whim - you have to arrange it with the police so they can arrange to have the road closed to traffic. That problem doesn’t exist with geographical locations.
That was not my point at all. The point was that stripping in a strip club is the appropriate time, place and manner.
Time place and manner restrictions (a)are required to be objective - there is considerable case law on this point, and (b) have nothing to do with whether speech is calculated to inflame or offend. So I can characterize free speech as an “objective right” - it is absolute unless the speech (objectively) presents a clear and present danger or is (objectively) done in an inappropriate time place or manner.
No offense, but bullshit. Simple fact: In NYC the stripper has not only the legal right, but the constitutionally protected right, to strip. In Bumfuck, she doesn’t. In NYC, the City Council cannot pass a law barring her from stripping. In Bumfuck, the City Council can.
Ironically, yes, I do advocate doing away with damages for pain and suffering, but that’s another issue. But for the main point, it is not a “reasonable person” standard. As spoke- pointed out, reasonable people within the same community differ on what obscenity is. Any subjective standard prevents people from knowing in advance whether their actions are legal. In this case, what is a person thinking of opening a strip joint supposed to do? Check the local laws? That doesn’t help - they may be unconstitutional (do you really think the town of Bumfuck conducted a survey of its residents to find the communal definition of obscenity?).
But the given jurisdiction here is the entire United States. It’s an issue of the Constitution. What I am asking is that the SAME Constitution be applied to all those DIFFERENT obscenity statutes. The Constitution doesn’t (generally) establish what the law is - instead it sets limits on how far government can go in enacting laws. If the Constitution prohibits NYC from enacting certain laws, how can that same Constitution be read to allow Bumfuck to enact those laws? In every other area, the difference in laws between jurisdictions is because jurisdictions have a certain amount of room to manuever before they run up against constitutional limits, and the jurisdiction chooses how far to go. In the area of obscenity, the constitutional limits vary. There is no sense in that, nor is their justice.
Please stop picking on Bumfuck, South Dakota. It’s a surprisingly cosmopolitan place.
Also, Jodi wrote:
I resent that.
But more seriously…
Jodi also wrote:
Ah, but the question of obscenity in the case of nude dancing doesn’t get decided by a jury. Instead, the legislative body or city council passes a law that says, e.g. “No one shall dance nude for money,” and then all a jury gets to do is decide whether the defendant was dancing nude and getting paid for it.
So it is frequently the legislative body, and not a jury, which gets to be the arbiter of the so-called “community standard.” What’s wrong with that, you ask? Weren’t they elected as representatives of the community? Well yeah, except that I most likely voted for Joe Councilman because he promised to fix my potholes, and not because I thought he would swoop in and ban nude dancing. Where does he get off, dictating morals to me?
This might’ve been lost in the shuffle yesterday, so let me try this again. If it gets no responses, I’ll let it go.
Italics mine.
Has anyone else noticed that this places a ceiling on the total number of adult establishments that can locate in the city? If NYC passed a law saying, “We will only allow 137 strip clubs/adult bookstores/etc. in the city,” it’s hard for me to imagine that that would pass Constitutional muster. But this is exactly what they’re doing, under the cloak of less conspicuous language.
Well, what pops into my mind, for some reason, is the fact that cities are allowed to limit the number of bars in town by limiting the number of liquor licenses they grant. So that is a kind of a precedent.
And cities also have zoning rules, so you can’t open up a Jiffy Lube right in the middle of the Kensington Estates subdivision. So maybe that’s another kind of precedent.
And as for dictating the “total number of establishments”, well, shoot, there’s plenty of space in the next town over, the one that doesn’t have the inconvenient “500 foot” law. What’s next door to NYC? Yonkers? Maybe all the strip joints will move up to Yonkers.
Zoning and adult establishments have an interesting legal history. To be honest, most of my knowledge on this issue has slipped away, but a town can zone adult establishments (within reasonable limits) just about any way it chooses. I doubt that a law stating a simple number of allowable strip joints would be constitutional, but a zoning scheme based on rational rules that has the same effect would probably pass muster.
It’s not all that unusual - if a town zoned 50 acres as industrial, and GM has a big plant that takes up those 50 acres already, then the town has limited the number of factories to one. That’s constitutional.
I asked “Why not limit free speech by geographic location?” to which SUA responds:
Sure it is – in this very context. The very fact that obscenity laws can be applied differently in different locations is itself a “recognized restriction,” based on geography, to our right to free speech. Or did you mean there is no other context that recognizes a restriction based on geography? I don’t see that as being probative of the legitimacy of the exception itself.
But do we all have an unrestrained right to offend each other? I think, though I may be wrong, that speech can be limited if it manifestly offensive (which obscenity would be) and is not calculated to accomplish legitimate ends (i.e., something besides what the Court calls "prurient interests).
I asked:
To which SUA responds:
I know that is not your point; I see your point. I am asking the obvious follow-up question: If stripping in a strip club is okay (regardless of what the people living outside the club might think), wouldn’t necrophilia clubs or bestiality clubs then be okay under the same rationale?
C’mon, SUA, you know that the legal fiction of the “reasonable person” is not negated by the fact that reasonable people may hold different opinions. The “reasonable person” is more like a societal average; it was never meant to represent absolute unanimity. How could we ever get that anyway?
But that’s exactly what they should do – check the local laws. And if they think the law is unconstitutional, challenge it. That’s how it works with every OTHER law.
In any event, I think I’m losing this argument. Man, I hate that.
Oh, and I’m not responding to RT’s zoning question because I know jack-shit about zoning.
Jodi: It seems you’re comparing apples and oranges with your beastiality/necrophilia club analogy. As far as I know, there are no circumstances where it is ever legal to have sex with an animal or a corpse. On the other hand, it is at least occasionally legal for a woman to take off her clothes, and the point of this thread seems to be wether being on a stage in a strip club is one of those times. I don’t really see where comparing striping and necrophilia is relevant to the debate, or even entirely sane.
NIMUNE, my point is that I don’t agree with SUA’s assertion that “appropriate venue” has anything to do with answering the question. If stripping was okay just because it was in an appropriate venue (a strip club) than other things would arguably also be okay if in an appropriate venue (a dedicated club).
Likewise, your pointing out that the acts I cited are otherwise illegal does not answer my question. But if you don’t like my examples, then try a voyeurism club, where people could pay to watch actual (not simulated) sex acts performed on stage. Surely we can agree that such acts would be legal in other contexts – such as when they are performed for free in your own home, but that has nothing to do with whether they may be prohibited by the government, regardless of whether they are in an “appropriate venue” or not. “Appropriate venue” IMO has nothing to do with it. That was my point.
This happens to be one I know, from having worked with a group of planners/zoning law experts in NYS.
In the State of New York, you may restrict adult entertainment to one particular zone (in the zoning sense, like “city center commercial” or “residential-3”). You may regulate it relative to the serving of alcohol on the premises. You may restrict it from being within a certain distance of other uses, where there is some reasonable nexus between the uses specified and the police power – e.g., elementary schools, churches, etc. Requiring that it not be within 500 feet of, say, a gas station would not fit that “reasonable nexus.” You may not zone it completely out of the community, unless you are prepared to demonstrate that there is and will continue to be adequate access to it in a contiguous community; this is a first amendment provision – therefore the exception (which is case law and contemplates small suburban villages near larger communities). Sua, I’d appreciate your take on this (including anything I’ve forgotten or misrepresented – it’s been over 5 years since I looked at adult entertainment laws).
I was just reading a fascinating chapter in the book The Trouble With Normal about how the removal of sexual businesses HURTS neighbourhoods. The author reports that a lot of the businesses the oldest gay neighbourhood in New York are severely struggling, because the sexually-themed businesses drew people to the neighbourhood. Now that the strip clubs, porn shops, and even incorrectly-licensed but ordinary discotheques have left, the “legitimate” businesses are having a hell of a time attracting clients.
I’ve never been to New York. All I know is that rue Sainte-Catherine wouldn’t be rue Sainte-Catherine without the strip joints. In Montreal we have strip joints all the way through downtown. People move here, and it bothers them for a year or so. Then they get used to it, and even come to appreciate them as part of the unique character of the city. (As my friend Scotty said during the 1998 ice storm when the neon lights went out at Club Super-Sexe: “Oh my God, the heart of Montreal is dead!”)
DDG… you are being entirely too reasonable. Shame on you.
Sssshhhh, egkelly, you are going to let the secret out!
Youa re 100% correct, sir. The “degrading to women” thing is bogus. Smokescreen. Co-opting the feminist argument for their own purposes, moralists would have us believe that they are crusading on behalf of the feminist cause. Bzzzzzzz. Wrong answer. Correct answer is: I control my own body and can do with it what I please. And exploiting the weakness of males who fall apart at the mere sight of it is what it pleases me to do. Silly men.
stoid
(who could not possibly dance nude, semi-nude, or bundled up in a snow suit without getting booed off the stage, but you know what I mean)
