America's War On Sex

Marty Klein

Part 7

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Battleground: Adult Entertainment- Adult Entertainment- Feverish Dreams, Real Estate Nightmares Last year, New York's Mayor Michael Bloomberg famously said, "I don't want a p.o.r.n shop in my neighborhood, and you shouldn't have one in yours."

On the one hand, there's something fundamentally silly about grown-ups running around, tripping all over each other to prevent lap dances and the sale of blowup dolls. You would think the dancers, dolls, and customers alike were wielding grenades, threatening to destroy cities in which people don't patronize strip clubs.

On the other hand, there's something profoundly scary about the ferocity of these continual attacks, the absolute self-confidence with which s.e.xual y conservative people d.a.m.n the beliefs and recreation of their fel ow citizens.

They unashamedly embrace civic coercion-genteel political and financial violence-in a commitment to manipulate government in whatever way necessary to accomplish what they want. Their pa.s.sionate crusade has an almost erotic sheen to it. If violence can spiritual y purify, these people are spiritual y pure.

The target is "adult entertainment": strip clubs, ma.s.sage parlors, art galler-ies, home s.e.x toy parties, erotic theater, topless bars, adult bookstores. And whatever else is designed to provide s.e.xually oriented entertainment.

With communism gone, with racial integration accepted in public and abandoned in private, with terrorism an enemy no one can fight in his own backyard, l.u.s.t-and-perversion is the identified menace of our day, an infinitely expandable threat as handy as Satan-and just as omnipresent, if you're of a mind to see it.

Adult entertainment is a little different than p.o.r.nography. With p.o.r.nography, people look at "bad" pictures or read "bad" words, which are representations representations of "evil impulses." The personal of "evil impulses." The personal enactment enactment of those impulses- of those impulses- actual actual swinging, bis.e.xuality, bondage, exhibitionism-is "pure evil," creating an enormous category of s.e.xual minorities that suffers legal persecution and discrimination every day (see chapter 14). swinging, bis.e.xuality, bondage, exhibitionism-is "pure evil," creating an enormous category of s.e.xual minorities that suffers legal persecution and discrimination every day (see chapter 14).

80.Adult entertainment falls in between; not simple representation, representation, not entirely not entirely enactment. enactment. Entertainment. America has a long love-hate tradition about these transactions. We can't, apparently, live without them; we won't, apparently, admit we can't live without them. Entertainment. America has a long love-hate tradition about these transactions. We can't, apparently, live without them; we won't, apparently, admit we can't live without them.

Civic censors make a point of calling this eroticism "public," even though it's all behind closed doors and is off-limits to the underage or those who can't pay. Since it isn't "private" in the traditional sense, they condemn it as non-intimate, stripping it of any respect, dignity, or legal protection. They've been saying for decades that an erotic experience can't be meaningful if it isn't "intimate."

Society desperately needs a third category, a name for s.e.xual behavior that lies between public (orgies in the street) and private (two people behind closed bedroom doors). We could easily call it "commercial," but that's the precise kiss of death in Puritan America. Other linguistic options are "nonpublic,"

"erotic entertainment," and "recreational." None is perfect.

As a large group of Americans increasingly accepts and partic.i.p.ates in taboo s.e.xuality, the repressive part of society cracks down with increasing fervor. The Internet and the modern lap dance didn't invent this schizophrenic civic morality, it existed during Victorian times, in Thomas Jefferson's home, during the Salem witch trials, as part of the Inquisition, in Chaucer's London, in Paul's own life, and backwards through time beyond that.

But Americans-who typically think "history" is whatever happened before the Dodgers left Brooklyn-see this conflict as uniquely contemporary. And empowered by a sense of American exceptionalism, s.e.xual conservatives are devoted to finally, completely winning this conflict by any means necessary short of nuclear weapons. Nothing is to stain G.o.d's shining city on a hill, not even the s.e.m.e.n of people whose rights are supposedly inalienable, endowed by their Creator.

The ways in which communities across America are successfully limiting their neighbors' expressive and recreational opportunities are endlessly creative, as expensive as necessary, and at the very top of the civic agenda. The coalitions driving this are typically religious (meaning, in America, Christian) at the core, but they attract other const.i.tuencies as well. These include worried parents, greedy business people, conflict-hungry media, savvy law enforcement departments, and cynical politicians who know a good bandwagon when they see one. In the good old days, the scurrilous political tactic of choice was accusing one's opponent of being soft on communism. That smear pales beside the power of today's smear of being soft on hard-core s.e.x.

This is a War on s.e.x, you know. They can deplore the negative impacts on neighborhoods, the exploitation of those poor strippers, 10-year-olds being lured into ma.s.sage parlors (which happens only in Reefer Madness Reefer Madness- type propaganda), and all the marriages destroyed by husbands preferring lap dances to home cooking. In contrast, everyone jokes about golf widows; Battleground: Adult Entertainment 81 Adult Entertainment 81 no one blinks at the number of blown-out knees young athletes suffer, small towns are begging to be destroyed by Wal-Mart, and marriage, well, marriage is in trouble across America.

So it's not the busted neighborhoods, ruined virginal strippers, kids playing Nintendo with hookers, or bored, philandering husbands that are the real issue. It's s.e.x as entertainment. It's people arranging for s.e.x to serve them, rather than people being enslaved by s.e.xual repression. It's the acknowledgement that erotic novelty is not only desirable, it's possible. And it's the a.s.sertion that men and women who choose to use s.e.x in this way can make responsible choices in the rest of their lives.

For those who fear s.e.x, tolerating adult entertainment means collapsing their crucial distinction between good people who repress their s.e.xuality and bad people who don't (and who suffer as a result). If someone can get a lap dance and be a loving father and husband at the same time, the fundamental principle that s.e.xual interest is dangerous is ruined. And there are too many people invested in that principle to let it be spoiled. They will stop at nothing to uphold it. They will use state-sponsored violence, discriminatory zoning, public shame, deceit and misrepresentation, fear, even threats of the Lord's wrath-whatever it takes.

Munic.i.p.alities say this persecution is because of the so-called secondary effects (increased crime, decreased property values, general "blight," increased "immorality"), but it's far more visceral than that-it's having to admit that "that stuff " exists. And some people are willing to destroy the rights of others to make that awful feeling go away.

What's interesting is that while most people don't feel they have the legal (or moral) right to exclude, say, an unwelcome Scientology center or Muslim butcher from their neighborhood or town, many do feel they have the right (indeed, the obligation) to exclude adult businesses. There's a cultural agreement that privileges people's discomfort if it's about s.e.xuality. If you're uncomfortable about blacks, you're a racist; uncomfortable about Jews, you're an anti-Semite; uncomfortable about s.e.x, you're a civic leader. Indeed, politicians vie to show who is the most disgusted with nonconforming s.e.xuality, and who works hardest to protect their const.i.tuents from having to face their discomfort about it.

This being America, of course, there are limits to how much you can eliminate s.e.xual expression and adult businesses. But this being America, courts al the way to the Supreme Court have agreed on various ways of doing so. Relying on alleged secondary effects and concern for public morals are good ones. So is wanting to limit child p.o.r.n, exploiting women, and stopping "trafficking," the new favorite. Laws designed to stop "s.e.x trafficking" in West Virginia or Oklahoma wil have the same effect as the elephant gun I keep in my office: True, I haven't had an elephant problem, but I want to keep it that way. And since the purchase, I haven't seen a single elephant, so the gun must be working.

82."We're not a town that tolerates sin," says mayor after a.s.semblyman after minister. Does an American town really have the option of not not "tolerating sin"? Supposedly, the reason taxpayers give organized religion so many privileges (regarding taxation, zoning, governance, use of the mails, etc.) is that it provides the social good of seducing people into behaving morally. If a town isn't satisfied with how effectively its churches are doing this, it has no legitimate legislative recourse. In a democracy, people "tolerating sin"? Supposedly, the reason taxpayers give organized religion so many privileges (regarding taxation, zoning, governance, use of the mails, etc.) is that it provides the social good of seducing people into behaving morally. If a town isn't satisfied with how effectively its churches are doing this, it has no legitimate legislative recourse. In a democracy, people don don' t t have the right to live in a morally pure place. They can attempt to live in a pure home, but that's it. have the right to live in a morally pure place. They can attempt to live in a pure home, but that's it.

Besides, let he whose home is without sin . . .

ZONING.

Zoning laws are a physical embodiment of our residential dreams and self-image. But America has decreed limits to the use of this tool. For example, cities can't use it to subtly encourage or support racial discrimination or air pollution. Using zoning to prevent specific businesses from locating anywhere in a town simply because "we don't like your kind" is illegal. illegal. Since the Supreme Court (in Since the Supreme Court (in Lawrence v. Texas Lawrence v. Texas) has said government can't legislate with the primary goal of enforcing a moral code, using zoning to do so should be banned as well.

Of course, there are graceful ways to use zoning as a crushing hammer.

New York City, for example, has proposed to allow adult entertainment- as long as it's at least 1,000 feet from a residence. In the shoulder-to-shoulder high-density world of Manhattan, that leaves thousands of locations for strip clubs-all beneath the Hudson River. Similarly, ordinances in small towns that ban adult entertainment within 500 or 1,000 feet of a school, church, park, residence, or government facility eliminate every site in town.

If New York New York is considering this, you know that cities across the country are. is considering this, you know that cities across the country are.

It must seem almost too good to be true for zealots: "You mean, all we have to do is pa.s.s a law saying those nasty businesses can't be here-and they can't be here?!" Other than the customers, business owners, and citizens who value the right to be left alone, who could object?

It's amazing that many Americans complain about government being too big, then feel frustrated when they can't use it in unlimited ways.

HOW A BUST WORKS.

Cities and counties across America spent way over $50 million last year hara.s.sing adult clubs and bookstores. That's a lot of librarians' salaries, a lot of updated firefighting equipment, a lot of preschool cla.s.ses for poor kids- not. not. 1 1 It is estimated that various jurisdictions in Florida alone spent as much as $5 million pursuing strip clubs and other adult entertainment venues in 2005.2 The City of Erie v. Pap City of Erie v. Pap' s A.M. s A.M. case cost Pennsylvania taxpayers at least one million dollars.3 case cost Pennsylvania taxpayers at least one million dollars.3 Battleground: Adult Entertainment 83 Adult Entertainment 83 Here's how it usually works: A community has one or more adult businesses-topless bars, adult bookstores, whatever. Each has paid the necessary business tax (often astronomical, compared to similar non-adult businesses), and is generally content to limit their signage and advertising. People who want to find these places find them.

Many residents or businesses a few blocks away don't even know they exist.

Somebody decides their very existence is awful. It may be a politician running for office, a police department wanting a boost, a religious leader looking for a new cause, an expose by a local newspaper or TV station in search of a story. It is virtually never never a bunch of people a bunch of people actually noticing, actually noticing, "Gee, there's more crime, less virginity, and unhappier wives in the neighborhood of the Kit Kat Klub ever since it opened. Maybe the club is the reason-let's get rid of it!" It's never that way, because that's simply not the reality. "Gee, there's more crime, less virginity, and unhappier wives in the neighborhood of the Kit Kat Klub ever since it opened. Maybe the club is the reason-let's get rid of it!" It's never that way, because that's simply not the reality.

So someone decides to make a fuss, gets some other people riled up, and they pressure the police, mayor, district attorney, or grand jury. Or the police decide to be entrepreneurs, looking for a popular bust that will increase their political and financial support. Either way, two or three police officers then go undercover. These underpaid, overworked cops sit in a strip club, and carefully, professionally, observe the activity there. They take covert photos. If they're in an adult bookstore, they buy some nudie magazines or overpriced d.i.l.d.os.

To get the best quality evidence, they go back night after night, and stay hour after hour. You would too, if you could do that instead of responding to domestic violence calls or muggings.

When the police voyeurs are sated, they typically close the place down. If it's a shop, they seize the inventory. If it's a club, they arrest anyone they please- dancers, ticket takers, janitors. They note any broken lightbulbs or bathrooms missing soap for the scrupulous health inspections which inevitably follow. If only our restaurants were inspected that thoroughly.

Evidence in hand, the prosecution begins. The narrative is always the same: wholesome town versus greedy, disgusting businessman. Sometimes a jury is impaneled to decide whether the dancing or material for sale is "obscene."

In other cases, one or more judges rule on whether the business has violated an ordinance that restricts nudity, obscenity, prost.i.tution, or other victimless crime. The munic.i.p.ality will spend no less than $250,000 for this first round of hara.s.sing the business. If the business wins, the munic.i.p.ality will frequently appeal, throwing good money after bad. Many of these cases go on for years, as cities and counties attempt to eliminate adult businesses, and courts keep reminding them that this is America.4 But this isn't a Jimmy Stewart movie with a simple, happy ending. Many clubs and stores win their cases, but are destroyed by the costs of doing so. Pastors who haven't learned to turn the other cheek when it's a b.u.t.tock say they don't care, as long as the businesses leave town.

Sometimes it works in the opposite direction. Munic.i.p.alities will attempt to zone adult businesses out of existence, and the businesses take the city or 84 84 county to court. Local, state, and federal courts are all over the legal map on the rights of adult businesses to exist and the rights of communities to ban them.

When courts do affirm the right of adult businesses to exist, locales typically respond by changing the rules: nude dancers have to wear pasties, or have to stay a prescribed distance from the audience (in a restraining order neither the dancers nor the audience want), or aren't allowed to touch or be touched, or must be clothed when not on stage. One city requires nude dancers to buy permits, which they have to display while dancing. while dancing. They say they're concerned for the dancers' health and safety.5 They say they're concerned for the dancers' health and safety.5 UNICORNS AND SECONDARY EFFECTS:.

IS ADULT ENTERTAINMENT DANGEROUS?.

Concern about the "secondary effects" of adult entertainment is the last refuge of scoundrels.

Americans are guaranteed the broad right to express themselves regardless of the content they wish to convey. Theoretically, the government may not single out particular forms of expression (like, "The President is insane!" [which is illegal to say in Turkey]) for restriction. Legally defined "obscenity" is one of the few exceptions to this protection. But the citizenry's increasing acceptance of s.e.xual materials in the 1980s made obscenity convictions harder to obtain.

In 1986, the Supreme Court finessed the Const.i.tutional protections of free speech ( Renton v. Playtime Theatres Renton v. Playtime Theatres)6 by creating a new, non-content non-content criterion that munic.i.p.alities could consider when limiting the operations of adult businesses. This was the "secondary effects" (coined by a dissenting Justice Stevens) which adult businesses supposedly have on the surrounding community. And, unlike in every other regulated industry, munic.i.p.alities didn't have to prove these effects existed (nor would businesses have the chance to refute these a.s.sumptions). criterion that munic.i.p.alities could consider when limiting the operations of adult businesses. This was the "secondary effects" (coined by a dissenting Justice Stevens) which adult businesses supposedly have on the surrounding community. And, unlike in every other regulated industry, munic.i.p.alities didn't have to prove these effects existed (nor would businesses have the chance to refute these a.s.sumptions).

The secondary effects that give local government a "compelling interest"

in stopping adult entertainment have typically been crime, reduced property values, "blight," STDs, and a vague "lowered morality."

For years, cities and counties have had the luxury of banning adult entertainment because of these supposed effects. Americans have had no reliable right to enjoy s.e.xually oriented entertainment; across the country, that right abruptly ended whenever local officials decided it was bad for the community. Some of our most respected jurists were uneasy about this. In 1988, Supreme Court Justice William Brennan warned that the secondary effects doctrine "could set the Court on a road that will lead to the evisceration of First Amendment freedoms."7 And that's exactly what happened. For two decades, the secondary effects doctrine has been used to restrict commercial and political speech, with cities citing concerns about noise, security, privacy, appearances appearances of impropriety, compet.i.tion, and of course, "harm to children." of impropriety, compet.i.tion, and of course, "harm to children."

Battleground: Adult Entertainment 85 Adult Entertainment 85 Officials in Erie, Pennsylvania, for example, tried for over 10 years to prevent nudity in the Kandyland strip club. The city knew it couldn't simply ban nude dancing, which the Supreme Court has given some free speech protection, so Erie claimed it was addressing the club's alleged secondary effects on its neighborhood-even though it couldn't prove any.

In 2000, a split court used the secondary effects rationale to uphold the criminalization of nudity. Justice Antonin Scalia argued that society's "traditional judgment" that nude dancing is "immoral" was sufficient justification.8 Justice John Paul Stevens dissented, saying, "To believe that the mandatory addition of pasties and G-strings wil have any kind of noticeable impact on secondary effects requires nothing short of the t.i.tanic surrender to the implausible."9 When experts or businesses challenged munic.i.p.alities to prove the existence of secondary effects, they couldn't. Fulton County, Georgia tried. When their studies didn't find the results they expected, the county ignored them and relied instead on old (and ultimately discredited) studies from other states.

In 2001, a federal court looked disdainfully on this ( Flanigan Flanigan' s Enterprises, s Enterprises, Inc. v. Fulton County, GA Inc. v. Fulton County, GA).10 The county was using deceit to uphold "moral standards." That's what desperation, and the narcissism of fundamentalism, will do.

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In a blatant attack on Americans' civil rights, the government validated the secondary effects concept in 2002. In City of Los Angeles v. Alameda Books, City of Los Angeles v. Alameda Books, the Supreme Court ruled, "It is rational for the city to infer that reducing the concentration of adult businesses in a neighborhood . . . will reduce crime."11 The bookstore's attorney, John Weston, challenged the city to produce evidence of secondary effects. It had none. the Supreme Court ruled, "It is rational for the city to infer that reducing the concentration of adult businesses in a neighborhood . . . will reduce crime."11 The bookstore's attorney, John Weston, challenged the city to produce evidence of secondary effects. It had none.

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