U.S. Appeals Court Halts Enforcement of Mich. Nudity Ban

Q Boyer
DETROIT — The 6th U.S. Circuit Court of Appeals has granted a preliminary injunction to a club and a dancer who challenged Michigan’s prohibition on nude dancing in establishments that serve alcohol, a decision that appears to have stemmed largely from the state’s mishandling of its legal arguments.

Hamilton’s Bogarts Inc., the company behind the Inkster, Mich., club Bogart’s Lounge, and a dancer named Kathleen Pozlin initiated the challenge to the state law, and moved for a preliminary injunction against its enforcement, arguing that the statute violated the 1st, 4th and 14th Amendments to the U.S. Constitution.

In February 2006, U.S. District Judge Julian Abele Cook Jr. denied the motion for a preliminary injunction, finding that they were unlikely to succeed on the merits of their case.

In reversing Cook’s decision, the 6th Circuit enumerated several errors the state made in arguing its case, including use of the wrong legal terminology and reliance on case law that has been rendered obsolete by subsequent U.S. Supreme Court decisions.

“In this argument, the state appears to confuse the doctrines of res judicata and collateral estoppel (issue preclusion),” the court wrote in its ruling, adding that because “collateral estoppel precludes future litigation of one specific issue, and because that is what the state effectively asks us to find, we construe their argument as one for collateral estoppel rather than res judicata, despite the substitution of one term for the other in the state’s brief.”

While the court was able to work around the state’s legal linguistic error, it could not assist the state where their case ran afoul of Supreme Court precedent.

The court noted that in rejecting the plaintiff’s 1st Amendment claims, the state relied on cases such as New York State Authority vs. Bellanca to argue that under the authority granted to states under the 21st Amendment to regulate liquor sales, a state could prohibit nude dancing where liquor is sold.

“Unfortunately for the state, the Supreme Court has entirely abandoned this rationale for upholding regulations that raise 1st Amendment concerns in places where alcohol is sold,” the court wrote.

The court noted that while the state definitely does have the authority to regulate nudity in alcohol-serving establishments as a function of attempting to mitigate negative “secondary effects,” neither the statute nor the state’s legal argument made reference to secondary effects.

“Although liquor consumption may well be a valid factor in a state’s consideration of secondary effects, it is no longer correct to argue that the 21st Amendment provides greater authority to regulate expressive conduct wherever liquor is sold,” the court wrote.

Throughout the nine-page decision, the court provides options the state could have pursued to craft a ban on nudity that could survive legal challenge — and notes repeatedly that the state simply has failed to exercise those options.

“Unfortunately, instead of addressing whether the regulations are content-based or content neutral and articulating any state interest that is furthered by the regulations, the state merely relies on its ‘broad discretion’ under [California vs.] LaRue,” the court wrote.

“We do not doubt that it is within the state’s police power to pass a nudity ban, to regulate places where liquor is sold, and to combat secondary effects that might be related to adult entertainment. But we are left to guess about the governmental interest at stake and how it is advanced by Rules 9 and 11, not to mention the critical question of which standard governs this case.”

Holding that the state had “advanced no relevant governmental interest and made no showing as to how Rules 9 and 11 advance such an interest,” the court determined that Cook had erred in denying the plaintiffs a preliminary injunction, and remanded the case to Cook with instruction to issue the injunction.

In a final admonishment to the state, the court closed its ruling by stating “hopefully the case will be litigated differently after remand.”

According to the Detroit News, Michigan club owners and their attorneys reacted to the rule with cautious optimism, noting that due to the reasoning behind the court’s ruling, the victory could be temporary.

Robert Horvath, attorney for a Detroit club called Chix, said that while some club owners might switch to fully nude dancing once Cook has issued an injunction, he planned to advise his clients against such a transition because the lifting of the ban was likely to be a “short-lived situation,” as the courts are likely to uphold a nudity ban that is better crafted — and better defended in court by the state.

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