Tuesday, a day after the latter event put on a resoundingly successful legal panel that shone a bright light on the battle to reverse Senate Bill 16 in Ohio, the Gentlemen’s Club Expo upped the ante by featuring six of the most experienced and authoritative attorneys in the business, all members (and former presidents) of the First Amendment Lawyers Association (FALA).
Moderated by Brad Shafer to a capacity crowd, the panelists were Alan Begner, Daniel Silver, Randall Tigue, Louis Sirkin and Jamie Benjamin. Their presentation covered more than two hours and myriad of subjects, but in the end a strong singular theme emerged.
Whereas in years past the lawyers defending adult clubs and stores throughout the U.S. could often rely on federal courts as a last bastion of protection against abusive government actions, they no longer feel as secure pursuing such avenues of redress.
Today, when the Bush administration has packed federal courts with political cronies, the feeling is that it makes more sense to proactively pursue political avenues such as lobbying, public relations and civic outreach in order to push back against organized and committed enemies of the industry.
Perhaps as a result of that desired shift in priority and strategy, the speakers focused their individual presentations on practical and pragmatic things club owners should do in order to position themselves within their communities so that when trouble arrives in the form of a Scott Bergthold, an attorney whose practice is solely devoted to helping local municipalities draft ordinances that drive adult businesses out of town, the clubs will be better prepared to survive without having to count on the protection of the federal courts.
Indeed, the protective measures mentioned are a good idea anyway, because litigation is always a terrible experience for everyone involved, and tends to burn bridges rather than build them. It is also, of course, very, very expensive.
Alan Begner spoke about the concept of dancers' exotic message, a form of speech afforded restricted legal protections under the 1st Amendment, and some recent threats to those protections in cities that have imposed strict restrictions on touching and the distance between performer and customer, and even on where and how dancers may touch themselves. It goes to the issue of lewd behavior, which is actionable in many communities, but standards vary widely.
“In very few exceptions,” Begner said, “customers who touch dancers create a recipe for disaster.”
“Go home and review your local ordinances,” Daniel Silver advised. “See if you should challenge them before they use them against you.”
Jamie Benjamin recounted a case he currently is involved with in Daytona Beach, Fla., where he encountered charges of negative secondary effects caused by his client’s club by providing expert testimony by two unimpeachable academics that decimated the city’s assertions, only to have the 11th Circuit Court of Appeals overturn an earlier lower court victory. They have appealed the decision and still hope for a victory that could have profound impact throughout the country.
Dan Silver spoke on zoning issues and advised all club owners to preemptively scope out their townships to find out what other areas are available for adult use in case a new more-restrictive ordinance is introduced.
Louis Sirkin spoke next and gave an impassioned talk that stressed a brutally realistic assessment by club owners of what is going on in their clubs. Bad facts, he said, lead to bad law. Prostitution does occur in your clubs, he added, and drugs are sold. Then he raised the specter of the Racketeer Influenced and Corrupt Organizations Act (RICO) and forfeiture.
“Don’t tell me you’re not involved in interstate commerce,” Sirkin said. “You all take credit cards, and those of you who don’t have ATMs.”
There also is the issue of nuisance abatement laws, which allow local governments to deny permits and keep clubs closed for as long as a year if certain illegal activities occur frequently at a club. In many ways, club owners have their own fate in their hands, Sirkin implied, when they continue to allow activity that they know puts their livelihood and freedom at risk.
“You’re a family,” he said. “Shut up and stop badmouthing the club down the block.”
Randall Tigue told a long and fascinating story about an exhausting battle to keep a club open in Minnesota. The owner was in the audience and got a nice round of applause for fighting, as Tigue put it, to “preserve the American way.”
Brad Shafer closed the seminar with an interesting note that for the first time in many years the U.S. Supreme Court will consider whether to hear three secondary effects cases, all of which are being conducted by well-known 1st Amendment attorneys, including himself and Sirkin. It will be very interesting to see, he said, which if any the court decides to hear. The decision will be known when the U.S. Supreme Court releases its docket for the next term in October.
