- WARNING
The following presentation contains
explicit adult photos and language and is
NOT suitable for minors.
If you feel you may be offended by the
content of this presentation, I strongly
suggest that you sit out for this portion of
the class
XXX Rating (subject matter only)
Sex in the City
Sex in the City
John W. Keller
Sex in the City
Legal Work By:
Sex in the City
City Sex and Advertising
Sex in the City
Introduction
Sex business is many
businesses
Retail stores
Media
Novelties
Lingerie
Sex in the City
Intro - 2
Many Businesses
Video Arcades
Movie Theaters
Adult Cabarets
Sex in the City
Scope of Discussion
INCLUDES
Lawful sex businesses
Book and video sales
and rental
Magazines and
newspapers
Sex toys
Lingerie
Movies
Live ARTISTIC
performances
Does NOT Include
Unlawful businesses
Prostitution
Sex in the City
Scope of Discussion (2)
INCLUDES
In-between
businesses
“Dancers in box”
“Body rub” parlors
“Lap dancing”
Sex in the City
Terms
Pornography
Generic term, accepted by academics and
industry
Refers to material that is lawful but may be
offensive to some or many
Term often used to apply to unpopular political
works
Obscenity
Unlawful material
Sex in the City
The Circular Definition
Obscene adj. 1. Offensive to accepted
standards of decency or modesty; 2. Inciting
lustful feelings; lewd. 3. Offensive or repulsive to
the senses; loathsome. ---- obscenely adv.
Lewd adj. Lewder, lewdest. 1. A. Preoccupied
with sex and sexual desire; lustful. B. Obscene;
indecent. 2. Obsolete. Wicked. --- lewdly adv. –
lewdness
Sex in the City
And, Of Course
Lust n. 1. Intense or unrestrained sexual
craving. 2. A. An overwhelming desire or
craving. B. Intense eagerness or enthusiasm. 3.
Obsolete. Pleasure relish. ---Lust intr.v. Lusted,
Lusting, lusts. To have an intense or obsessive
desire, especially one that is sexual.
Sex in the City
And, Then Again
Prurient adj. 1. Inordinately interested in matters of sex;
lascivious. 2. A. Characterized by an inordinate interest
in sex. B. Arousing or appealing to an inordinate interest
in sex. ---prurience or pruriency n. –prureintly adv.
Lascivious adj. 1. Given to or expressing lust;
lecherous. 2. Exciting sexual desires; salacious. --lasciviously adv. ---lasciviousness n.
Salacious adj. 1. Appealing to or stimulating sexual
desire; lascivious. 2. Lustful; bawdy. –salaciously adv. –
salaciousness or salacity n.
Sex in the City
Sex Business
…is big business
Probably at least 15
percent of all video
rentals
Sex in the City
Sex Business
Has LEAD
technological
revolution
VCRs
Including ultimate
victory by VHS format
Movement of graphics
on Internet
Sex in the City
Sex Business
Spread of hard-core
Check your hotel room movies
Look for HIGH SOCIETY in airport
newsstands
Easily available on Internet
Moved to the Interstate
Sex in the City
The Tasks
Review ordinances in other jurisdictions
Conduct site visits
Conduct interviews with residents and
businesses (professional research co.)
Draft revisions to the zoning and licensing
codes
Sex in the City
Survey of Other Jurisdictions …(2)
No differentiation by use … “one-size-fitsall”
Allowed adult uses by right in commercial
and industrial zones
Several communities only in CBD
Distance … most used straight line
Sex in the City
Site Visits … Knowing the Subject
Understanding the operations
Meeting the owners/managers
Top times for business
Weekdays and weekends … Lunch hours
Weekday & weekends … AFTER 8 pm
Sex in the City
Businesses with less than …
Local Video Stores …backroom
operations?
Sex in the City
Business with less than … (2)
Lingerie shops … Victoria Secret never
thought about some of this lingerie!
Sex in the City
Business with less than … (3)
Novelties … ”marital aides”
Sex in the City
Business with less than … (4)
Sex devices … contended “not obscene if
of medical or social redeeming value”
Sex in the City
Video Viewing Booths …
Visiting the booths
Sex in the City
Visiting the Video Booths …(2)
Sex in the City
Visiting Video Booths … (3)
Sex in the City
Video Booths vs. “Media Rooms”
Seats for 11 or more
Sex in the City
Adult Theaters (2)
Structure is the “medium”
Sex in the City
Kansas City’s Only CX Zone
KC paid relocation costs …
Sex in the City
Live Entertainment
Sometimes a mixture of live shows and
video movies
Sex in the City
And, The Opposition
Public opinion …
Sex in the City
Zoning
Land Use
Classifications
Conditional
Book/Video/News
Rules
10—50% sexually
oriented content
Must be physically
separated by opaque
wall
Must have
managementcontrolled access to
sex materials
Sex in the City
Problematic Uses
Nude dancing
Supreme Court now
says clearly that
generally applicable
anti-nudity ordinances
OK
Sex in the City
Hybrid Uses
Sex in the City
Problematic Uses
Nude “dancing” in a
booth (box)
Typically
demonstrations of how
to use sex toys
Ban by setting
minimum floor area for
live performances
Sex in the City
VIDEOS AND MORE VIDEOS
Sex in the City
Licensing
Cincinnati/Kansas City
Model
Puts DUTY on licensee to
monitor premises and
PREVENT specific
activities
No CRIMINAL penalties
without knowledge, but can
get points against license
when prohibited activities
occur
Sex in the City
Licensing
Also license
managers and
entertainers
Require license of
manager-on-duty to be
posted (or have point
penalty)
Sex in the City
Denver – Sapp Brothers Tank
Sex in the City
Other Side of the Tank
Sex in the City
And Variation
Sex in the City
The Bottom Line
The expression of an idea cannot be
suppressed simply because society finds
the idea to be offensive a disagreeable.
The First Amendment was not created to
make us feel comfortable.”
Sex in the City
Probably – The Best Way Is
Social Pressure
Sex in the City
Obscenity v Suppression
The test for determining whether speech
or expression can be labeled obscene, in
which case it is not protected by the First
Amendment to the United States
Constitution and can be prohibited.
Sex in the City
The Miller Test
Whether the average person, applying contemporary
community standards, would find that the work, taken as
a whole, appeals to the prurient interest,
Whether the work depicts/describes, in a patently
offensive way, sexual conduct or excretory functions [2]
specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious
literary, artistic, political, and scientific value.
Sex in the City
Young v American Mini Theaters
First amendment
Obscenity
Speech
Protected activity
Combat Zoning
Sex in the City
The Controversy
Detroit passed a “dispersion” or
reverse combat zone concept to
control the spread of “adult”
businesses. The regulation prohibits
adult theatres from locating within
1,000 ft. of any two such uses or within
500 ft. of a residential area.
Sex in the City
Regulated “Adult Uses” Include
Adult Theaters
Adult Book Stores
Certain Bars
Certain Hotels (Rent by Hour)
Cabarets
Sex in the City
The Underlying Question
The classification of a theater as "adult" is
expressly predicated on the character of the
motion pictures which it exhibits
If the theater is used to present "material
distinguished or characterized by an emphasis
on matter depicting, describing or relating to
`Specified Sexual Activities' or `Specified
Anatomical Areas, it is an adult establishment.
Sex in the City
Court of Appeals Reverses
The Court of Appeals reversed
The majority opinion concluded that the
ordinances imposed a prior restraint on
constitutionally protected communication and
therefore "merely establishing that they were
designed to serve a compelling public interest"
provided an insufficient justification for a
classification of motion picture theaters on the
basis of the content of the materials they purvey
to the public.
Sex in the City
Court Applies The O’Brien Test
Is the action within the power of government
If it furthers an important or substantial govt.
interest
Governmental interest is unrelated to the
suppression of free expression
The incidental restriction on alleged 1 ST
amendment freedoms is no greater than is
essential to the furtherance of the interest.
Sex in the City
The Reasoning
The court found evidence to support
the contention that a concentration of
adult uses tended to attract an
undesirable quantity and quality of
transients, to increase street crime,
promote prostitution, and provide a
good base for street drug sales
Sex in the City
Conclusions
“Since what is ultimately at stake is nothing
more than a limitation on the place where adult
films may be exhibited, even though the
determination of whether a particular film fits that
characterization turns on the nature of its
content, we conclude that the city's interest in
the present and future character of its
neighborhoods adequately supports its
classification of motion pictures.”
Sex in the City
City of Renton v Playtime
Theaters
Renton passes a city ordinance that prohibits
adult motion picture theaters from locating within
1,000 feet of any residential zone, single- or
multiple-family dwelling, church, park, or school.
Playtime Theaters plans to open two “adult
theaters” in the City
The ordinance does not target other sexually
oriented business such as book stores and the
like
Sex in the City
The Place
Renton is a City of about 40,000 located
just South of Seattle
Sex in the City
The Legal Maneuvers
The Federal District Court found that the Renton
ordinance did not substantially restrict First Amendment
interests
Renton was not required to show specific adverse
impact in the area from the operation of adult theaters
They could rely on the experiences of other cities
The purposes of the ordinance were unrelated to the
suppression of speech, and that the restrictions on
speech imposed by the ordinance were no greater than
necessary to further the governmental interests involved.
Sex in the City
Now The Appeals Court
The Court of Appeals reversed finding that the Renton
ordinance constituted a substantial restriction on First
Amendment interests
The Court of Appeals held that Renton had improperly
relied on the experiences of other cities in lieu of
evidence about the effects of adult theaters on Renton
Renton had thus failed to establish adequately the
existence of a substantial governmental interest in
support of its ordinance, and that in any event Renton's
asserted interests had not been shown to be unrelated
to the suppression of expression.
Sex in the City
The Supreme Court
We think the Court of Appeals imposed on the
city an unnecessarily rigid burden of proof
The record in this case reveals that Renton
relied heavily on the experience of, and studies
produced by, the city of Seattle. In Seattle, as in
Renton, the adult theater zoning ordinance was
aimed at preventing the secondary effects
caused by the presence of even one such
theater in a given neighborhood.
Sex in the City
Another Argument
Playtime argues that the 1,000’ restriction
would leave them with about 520 acres of
the some 10,000 acres located in the City.
They note that this leaves them with
practically no viable economic possibility
of locating an adult theater in Renton
Sex in the City
The Response
That respondents must fend for themselves in the real
estate market, on an equal footing with other prospective
purchasers and lessees, does not give rise to a First
Amendment violation
And although we have cautioned against the enactment
of zoning regulations that have "the effect of
suppressing, or greatly restricting access to, lawful
speech," we have never suggested that the First
Amendment compels the Government to ensure that
adult theaters, or any other kinds of speech-related
businesses for that matter, will be able to obtain sites at
bargain prices.
Sex in the City
Barnes v Glen Theatres
The South Bend, IN passes an indecency
statute making “public nudity” a Class A
misdemeanor
“The showing of the human male or female
genitals, pubic area, or buttocks with less than a
fully opaque covering or any part of the nipple,
or the showing of the covered male genitals in a
discernibly turgid state.”
Sex in the City
However
The statute did make a distinction
between common public nudity and nudity
that is intertwined with the larger form of
expression of ideas. Eventually, this would
save the statute from overbreath in the
context of art and performances such as
Hair, Jesus Christ SuperStar, or even live
burlesque.
Sex in the City
The Facts
The Kitty-Kat Lounge and Glen Theatre are
located in South Bend, IN. The former provides
alcoholic beverages and GO GO dancing while
the latter furnishes written materials, movies,
and live shows with nude men and women
performing behind glass panels. The owners
claim that the requirement to wear “pasties” and
“G-Strings” is a violation of their First
Amendment Freedom of Expression.
Sex in the City
The Courts
The Federal District Court struck down the
statute and issued a permanent injuntion
against its enforcement.
Indiana appeals and the U.S. Circuit Court
of Appeals reversed holding that the
statute was drawn sufficiently narrow and
that nude dancing was not expression and
therefore not a protected activity.
Sex in the City
The Supreme Court
To receive First Amendment Expression a
two part test is applied:
Did the actor have the intent to convey a
particular message?
Was there a great likelihood that the receiver
understood that message?
Sex in the City
The Decision
The majority of the Court found that erotic
dancing “was expression lying on the
marginal fringe of the First Amendment.
However, the state had a rational basis for
control – “the evil the statute seeks to
address is not erotic dancing but public
nudity,” and thus protecting societal order
and morality
Sex in the City
The O’Brien Test
The States' traditional police power is defined as the authority to
provide for the public health, safety, and morals, and such a basis
for legislation.
This governmental interest is unrelated to the suppression of free
expression, since public nudity is the evil the State seeks to prevent,
whether or not it is combined with expressive activity. The law does
not proscribe nudity in these establishments because the dancers
are conveying an erotic message. To the contrary, an erotic
performance may be presented without any state interference, so
long as the performers wear a scant amount of clothing. Finally, the
incidental restriction on First Amendment freedom is no greater than
is essential to the furtherance of the governmental interest.
Sex in the City
City of Crystal City v Fantasy
House
Fantasy House opened an adult novelty
store is Crystal City. After several
ordinances were passed (1,000 ft
restrictions from many uses) left less than
1 percent of the City was left open to such
adult uses
Sex in the City
District Court Trial
After a trial, the court found that the interim ordinance
banned adult establishments and that the permanent
ordinance provided less than one percent of Crystal's
land for their location
As a result, the court held that the interim and
permanent ordinances failed to provide reasonable
alternative avenues of communication and were not
narrowly tailored to a substantial government interest
Also, the court held that it was not reasonable for Crystal
to rely on studies of adult establishments providing onsite consumption of sexually explicit material because
Fantasy House does not provide on-site consumption.
Sex in the City
On-Site versus Off-Site
“Examples of adult establishments that provide
on-site consumption of sexually explicit material
include massage parlors, nude dance clubs,
adult movie theaters, and adult establishments
that provide booths for privately viewing adult
movies. Fantasy House provides no on-site
consumption of sexually explicit material.”
Sex in the City
Just A Little Area
The area available to Fantasy House is
very small but we agree with Crystal's
representation that the limited area
available in its city is a result of the city's
overwhelmingly residential character and
conservative planning practices.
Sex in the City
Conclusion
The interim ordinance met the requirements of
First Amendment Protection
In enacting its permanent ordinance, Crystal
reasonably relied on studies that analyzed the
negative secondary effects associated with adult
establishment businesses to establish that the
permanent ordinance served a substantial
government interest
The permanent ordinance also provided
reasonable alternative avenues of
communication.
Sex in the City
Bottom Line From These Cases
You cannot not deny adult uses from
locating in your town.
However, the restrictions may be very
strict if they rely on studies of negative
secondary effects.
Even though there may be little to nothing
in the way of location opportunities, that is
tough luck in the real estate market.
Sex in the City
The Kitty-Kat Lounge is Now
Closed And In Its’ Place
Sex in the City
Time To Settle The Question
In the Barnes case the Supreme Court left
a small door open with the statement that
nude, erotic dancing was entitled to a least
a “little bit” of First Amendment Protection
So now comes Erie – PAP’S - AM
Sex in the City
Nude Dancing and Forgiveness
Sex in the City
Lady J Lingerie
Sex in the City
The Jacksonville Ordinance
Adult entertainment establishment means a
commercial establishment where the owner, or
an employee or agent of the owner, suffers,
permits, allows, encourages, or pays any person
to engage in nude entertainment on the
premises. Adult entertainment establishment
also includes any establishment which contains
or operates an adult entertainment booth.
Sex in the City
Background
Lady J uses nudes to model lingerie
Jacksonville limits “adult uses” to one
zone by right and several other
commercial zones by special exceptions.
Sex in the City
A Body Painting Artist is Available
Sex in the City
Central Restriction
Distance limitations are applied in all
zones
There are only two commercial sites
available in the zone by right - meaning
that all other uses must apply for an
exception
Sex in the City
The Meaning
In this case a special exception may or
may not be granted by the City. Therefore
in constitutes a form of license.
This raises the question of whether or not
you may license adult uses
Sex in the City
Additional Provisions
Adult uses may not operate from 6:00 AM
until 11:20 AM everyday.
They must be 1,000 sq feet in area
Sex in the City
Confused Mulling
Although the City cannot offer any real
reason for the closing times, nonetheless
the court finds that being able to be open
14 hours a day is sufficient
1,000 sq. ft. is approved because of
studies that show that illegal and
unhealthy activities take place in small
rooms
Sex in the City
And Disclosure
Jacksonville requires that adult uses
disclose the name of all holders in the
corporation that own more than 10 percent
of the corporation
The Court strikes down this provision
since it has an unjustifiable “chilling effect”
on first amendment rights
Sex in the City
Finally, And Fines or Jail
The adult code makes the owner liable for
the crimes that their employees might
commit on the premise. This include both
fine and/or jail (after the 6th offense)
The Court strikes down this provision
because someone cannot be imprisoned
for the acts of another without certain
circumstances
Sex in the City
Background
PAP’s AM features highly individualized
erotic, nude dancing. Each dancer has
developed an expressive form of dancing
that becomes “his – her” trademark.
Erie bans nude dancing and requires the
traditional “small covering.”
Sex in the City
Then
The Penn. Supreme Court, using the U.S.
Supreme Court’s promise of minimal
protection, strikes the law down sayings
that erotic dancing is entitled to First
Amendment Protection
Sex in the City
But, The Supreme Court Closes
the Door
Using the O’Brien Test
The ordinance regulates conduct, and any
incidental impact on the expressive element of
nude dancing is de minimis. The requirement
that dancers wear pasties and G-strings is a
minimal restriction in furtherance of the asserted
government interests, and the restriction leaves
ample capacity to convey the dancer’ s erotic
message.
Sex in the City
My Comment
It is hard for me to see how the requirement to
wear pasties and g-strings will have some
influence on negative or criminal behavior
Should public nudity in a highbrow play be
protected by the First Amendment, but not public
nudity in a lowbrow bar
Sex in the City
Wise Enterprises v Athens Clark
County
Nude dancing establishments require a
license
No license can be granted if the use is
located in the CBD zone or if the
establishment serves alcohol
Sex in the City
The Short Finding
The County was "attempting only to
regulate the sale of alcohol in
inappropriate places and it has determined
that it is inappropriately sold in places
where nude dancing is offered
Sex in the City
The New Nude Dancing
Juice Bars
Near Beers
Interactive Video
Streaming Video
Sex in the City
Multiple Use
Alameda Books
The controversy - "the establishment or
maintenance of more than one adult
entertainment establishment in the same
building, structure, or portion thereof
Los Angeles has also adopted the 1,000’
density rule
Sex in the City
The Charge
a City building inspector found that
Alameda was operating both an adult
bookstore and an adult arcade in the
same building and was therefore in
violation of city code
Sex in the City
The City’s Study
The Study looked at the concentration of four
types of adult businesses. It assessed five areas
where these businesses were concentrated and
compared crime rates in these areas with rates
in nearby "control" areas. As noted, the Study
concluded that there was a positive correlation
between concentrations of these adult
businesses and increases in prostitution,
robberies, assaults, and thefts.
Sex in the City
But
The City studied cases where SOBs were
concentrated in particular clusters in
different buildings – not when multiple
businesses were in the same building
Sex in the City
Failure
Prohibiting arcades and adult bookstores
from being located in the same building
would not prevent the type of unhealthy
conditions in the booths that the Fourth
Circuit cited as the only evidence
produced by North Carolina to justify its
statute.
Sex in the City
Conclusion
There is nothing in the case to indicate that the
same type of behavior that occurs in viewing
booths in combination bookstore/arcades would
not occur in an establishment that only furnishes
an arcade. Therefore, any inference that the
statute could have an ameliorating impact on the
identified harmful secondary effects would be
unreasonable.
Sex in the City
And Finally,
More and more adult businesses are now
commissioning studies, performed by experts such as
Bruce McLaughlin, to show that adult businesses do not
cause a greater incidence of crime than non-adult
businesses
The actual data show that street crime is much more
concentrated in bars/nigh club districts rich with ATMs
The real data appears to be the about how the industry
destroys the lives of those that make their living from it
Sex in the City
A Booming Business
“Web Design Adult is a high end design firm
specializing in custom adult websites geared towards
generating customers guaranteed revenues. The adult
entertainment industry is booming and having an adult
turn-key website is one of the best ways people like
yourself can get into the action.”
http://www.webdesignadult.com/
Sex in the City
Module Summary
Adult Businesses Are Legal Businesses
The Touching Business is Not Legal
The First Amendment Protects Expressive Conduct
However, Expressive Conduct Is Not Burdened By De Minimis
Covering
SOBs Can Be Regulated and Licensed – So Long As the Purpose Of
The Regulation is Not Based On Suppression of Expression
Pornographic is Not Obscene
Child Pornography is Obscene – But It is Legal OR Ignored in The
Czech Republic (depiction only), Russia, Brazil, Netherlands, Ukraine,
Thailand and 45 Other Countries
The “Adult” Business Probably Does Not Increase Voluntary Street
Crime – But Most Certainly Takes A Decisive Toll On Participants
Sex in the City
