Legal Strategies

How Joe Redner would challenge a new anti-nudity law

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If the Hillsborough County Commission thinks it will simply pass a new anti-nudity ordinance and all the strippers in town will don bikinis (or become secretaries), they've got another thing coming. Emboldened by the civil disobedience of Mons Venus owner Joe Redner, strip clubs are certain to flout the law, which will strain police resources and clog the courts.

Erotic dance is protected as free speech under the First Amendment. David Caton's "Crimes Related to Nude Entertainment" report is an effort to trump the "freedom of expression" claims that usually get nude-dancing ordinances struck down.

The U.S. Supreme Court says that local governments looking to regulate adult businesses cannot do so merely because they find it offensive. They must show that "adverse secondary effects" result from such businesses. These secondary effects include increased crime, depressed property values and urban blight. Per Caton, rape and domestic violence certainly qualify as adverse.

The breakthrough case with regard to secondary effects came in Detroit in 1972. The city adopted an "Anti-Skid Row" ordinance that required adult businesses to be a minimum distance from similar establishments and neighborhoods.

Detroit's approach, which withstood court challenges, became the model used by most cities to regulate adult entertainment, including Tampa and Hillsborough County. (The county currently requires adult businesses to be at least 2,000 feet from any residential area, church, childcare facility or public recreation area; and 2,500 feet from any school.)

As regulation of adult businesses spread throughout the country, more and more secondary effect studies were conducted. The only such report pertaining to Tampa was issued by a USF criminology professor in 1982. Its findings were based on interviews with residents rather than crime or property value statistics. His conclusion: The people weren't too keen on adult businesses.

Over time, the validity of adverse secondary effects became entrenched and generally prevailed in court.

"For years, it made it easier for governments to shove ordinances down our throats," says Luke Lirot, a First Amendment lawyer who represents Redner and others. Nude establishments and their lawyers have long complained that judges refused to allow them to submit their own evidence rebutting adverse effects.

Then, three years ago, the door cracked open. Two Supreme Court rulings — Erie (Pa.) v. Pap's (2000) and City of Los Angeles v. Alameda Books (2002) — said that adult establishments could dispute allegations of secondary effects. In the latter case, the Court said governments cannot "get away with shoddy data or reasoning."

Additionally, the court gave adult establishments the green light to "cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings."

"This was the opening we were looking for," Lirot said.

A number of local governments in Florida currently have bans on public nudity that have prevailed in legal battles — in St. Johns County, Brevard County, Orange County and Manatee County. But Lirot says that none of them have yet been challenged with the aggressive measures now permitted by the recent Supreme Court decisions.

Coming soon to a court near you: A brand new flurry of studies.

About The Author

Eric Snider

Eric Snider is the dean of Bay area music critics. He started in the early 1980s as one of the founding members of Music magazine, a free bi-monthly. He was the pop music critic for the then-St. Petersburg Times from ‘87-’93. Snider was the music critic, arts editor and senior editor of Weekly Planet/Creative...
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