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View Full Version : NY Court rules against Hustler Club - 'Stripping' is NOT an Art under the law ...



Melonie
02-12-2014, 07:37 AM
from .

(snip)An administrative law judge says Larry Flynt’s Hustler Club in Manhattan must charge sales tax on lap dances.

“This adult entertainment establishment provides a service to its patrons that essentially boils down to performers who remove their clothing and create an aura of sexual fantasy,” Administrative Law Judge Donna Gardiner wrote in a decision issued Monday.

After listening to strippers' testimony and watching the club's videotapes, Gardiner ruled that some of the strippers' routines involve dance, choreography and music, but overall, these are not artistic performances.

Gardiner said the Hell’s Kitchen jiggle joint will have to pay $2.1 million in sales tax on the $23.8 million worth of scrip, or the club’s in-house currency, that it sold between June 1, 2006 and November 2008. ***

The majority from that 4-3 decision said it was not "irrational" for tax officials to disqualify strip club performances "by women gyrating on a pole to music" since the legislature already disqualifies ice shows where performers engage in "intricately choreographed dance moves precisely arranged to musical compositions."(snip)


Lots of potential take-aways from this court decision ...

It obviously considers lap dances / VIP room sales as 'commodities' that can be subjected to sales tax. This will cost Hustler .1million dollars, and can now also be applied across the board to all other NY strip clubs immediately. The precedent also makes it very easy for other states to implement same. Obviously, if the state is now going to claim an 8% 'cut' of customer private dance / VIP / scrip purchases ( via imposing a sales tax ), that 8% will have to be made up for by one means or another.

By officially ruling that exotic dancing is not 'artistic performance', the court weakens possible 'independent contractor' legal arguments, and thus lays the legal groundwork for clubs to be considered 'employers' and dancers to be considered 'employees'.

Also by officially ruling that exotic dancing is not 'artistic performance', the court weakens possible 'free speech' arguments, and thus lays the legal groundwork for new laws / regulations being enacted against strip clubs.

Cheo_D
02-12-2014, 07:08 PM
Well, this is now the (administrative) authority with jurisdiction over NYC finally ruling on how they'll apply the 2012 Nite Moves decision (from a Court of Appeals) in the City. Interestingly, so, the Entertainment Tax has to be charged on the Dance Dollars (and I suppose, on any purchase that leaves a paper trail); the report does not go into how or whether they wrote about what to do with cash transactions. I think on that subject it will just mean the end at long last of the $20/song NYC lap dance. It would be a no-brainer for management to adjust the nominal rate to $23.15 so it becomes an even "$25/song, Tax Included".

Agree with Melonie's last two paragraphs on likely repercussions of these decisions, though the Free Speech argument can be made about some entertainment activities so it's not completely lost, just requiring better lawyering.

As to NYC specifically, I mentioned in another thread here or elsewhere, I'm not too confident that the new people in charge in NYC may not go after the clubs, this time in the name of feminism and fighting "exploitation", rather than of keeping the town family-friendly.

As an aside -- I wonder, though, whether taxation of the strip clubs being subsumed under the regular, general "entertainment tickets tax" as just another legit entertainment venue as would be the ice show, should be seen as preferrable to the trend in several states to propose a specifically strip-club-targeted "Pole Tax".

Bone
02-12-2014, 10:35 PM
One of the nice things about IL is the lack of services tax, but that will likely change in a year or two. O well, Uncle Sam and Co want their Sin Tax. With the net affect of more money to the gov't, less money for the ladies and less dances for the guys. And because it is now a tax I get the feeling many places will do what they do with other Sin Taxes, apply targeted tax hikes. Cigs being an obvious example, many states charge more taxes per pack than the pack costs.

Melonie
02-13-2014, 01:04 AM
^^^ yes but with rising lap dance prices as well as rising cigarette taxes, A. sales volumes thus earnings for the seller are reduced, and B. customers are incentivized to 'shop' at different ( sometimes distant ) venues where net prices are significantly lower.

Agreed that this decision is a 'follow-up' to the earlier Nite Moves court ruling. Also, in principle at least, this latest court ruling mandates that NY clubs now charge sales tax on all 'transactions', cash or credit card. In theory this provides a mechanism by which NY state / city tax agencies 'need' to start tracking the direct cash incomes of NY dancers in order to insure that THEY are also collecting and paying sales tax.

As to future motivations for the NYC government, indeed from the 'policy' side there are now people in power who might wish to pursue strip clubs on the basis of 'female exploitation' etc. But much more pragmatically, NYC also needs tax revenues. And NYC has strong Union interests. So I would see a push for 'employee' dancer treatment as the loghichical next step, as opposed to general club busts. 'Employee' dancer treatment would supposedly stop 'female exploitation' by clubowners, increase tax revenues, and increased union membership all at the same time.

Cheo_D
02-14-2014, 07:32 PM
But much more pragmatically, NYC also needs tax revenues. And NYC has strong Union interests. So I would see a push for 'employee' dancer treatment as the loghichical next step, as opposed to general club busts. 'Employee' dancer treatment would supposedly stop 'female exploitation' by clubowners, increase tax revenues, and increased union membership all at the same time. Yes, let's hope good sense prevails.

Heh, though how could I tell a work-to-rule labor action from just a lame air dance... The late, lamented Lusty Ladies of San Fran were affiliated with SEIU, I believe.

Melonie
02-15-2014, 04:10 AM
The late, lamented Lusty Ladies of San Fran were affiliated with SEIU, I believe.

Indeed they were ! And, indeed, the SEIU undoubtedly views the possibility of being able to sign up and collect dues from thousands of new high-earning 'union member' dancers with dripping saliva !!!

Perhaps the most 'telling' aspect of these developments are that they 'dovetail' so well with the recent court decisions throughout the northeast states that have ruled that clubs are 'employers' and that dancers are 'employees'.

knightwish
02-15-2014, 04:46 AM
Melanie excellent summary. If Hustler rents the room to the women and the women sells the lap dances in terms of transactions (which is the norm) and she really is an independent contractor then Hustler can walk away from the problem. They would just have to report the number of dances for the various EINs and leave the dancers responsible for collecting sales tax and everything else pretty much unchanged. In that case because the women would be filling out more paperwork they would look more like independent contractors and it would strengthen not weaken their independent contractor status. In terms of the 8% I don't know if the city really cares about 8% of individually dancer's LD revenue. If they do, then they have a pretty good case. From your summary it appears they are only taxing the script that was sold not the LDs themselves so that makes it even more likely that only LDs paid with script to individual EINs would need to be taxed and that's not terrible.

As far as free speech and LDs. I know that free speech applies to nude dancing as an artistic performance. Has any court ever held that an LD is an artistic performance and has 1st amendment protection?

knightwish
02-15-2014, 05:07 AM
Indeed they were ! And, indeed, the SEIU undoubtedly views the possibility of being able to sign up and collect dues from thousands of new high-earning 'union member' dancers with dripping saliva !!!

Perhaps the most 'telling' aspect of these developments are that they 'dovetail' so well with the recent court decisions throughout the northeast states that have ruled that clubs are 'employers' and that dancers are 'employees'.

This one I think we are on the opposite side of. IMHO it would be awesome for dancers to have union representation that had government backing. For my primary regulator is the FCC. Every year the FCC meets with telco players at the state level (in my case the New Jersey Technology Council) and we have a joint meeting where we discuss (a real two way discussion) the upcoming year's problems and how things should be regulated. Those discussions role up to Washington and become the regulations that govern the industry. Those regulations because they mostly originated from the regulated industries are primarily enforced by the industry not by the FCC. We all support the regulations we are subject to (obviously there are exceptions but...).

IMHO dancers right now have the worst regulatory regime possible. They have an intrusive, invasive and threatening regulatory body. And they have no voice in that body. You have nothing like the kind of relationship with your regulators, I do with mine. Your regulations come from people who are quite often hostile to the very existence of your industry. Under a union there could be open conversations where vice and dancers work jointly to improve the lives of the people of New York and you would have effective political voice. Right now dancers have little or no access to police when they have problems. Right now dancers never clearly know what is and is not legal and moreover often the police lie to make busts. Right now dancers have no way to negotiate with vice because vice doesn't care what they think.... The SEIU could change all of that.

On top of that club managers frequently are terrible and unfair to dancers. That's often another layer of arbitrary and unfair management.

Of course none of this can get resolves as long as pimping statutes remain on the books and would apply the second these women became employees. There is simply no way this industry can exist the way it is configured now with the severe penalties for pandering, the rather broad interpretation of what constitutes prostitution and dancers being employees. One of these has to go. IMHO the best thing to go though is making prostitution decriminalized. We've talked about what legalization would mean for strip clubs and I guess Canada will show it. Much less drastic is narrowing the definition of pandering so it wouldn't apply to club owners

Melonie
02-15-2014, 08:30 PM
If Hustler rents the room to the women and the women sells the lap dances in terms of transactions (which is the norm) and she really is an independent contractor then Hustler can walk away from the problem. They would just have to report the number of dances for the various EINs and leave the dancers responsible for collecting sales tax and everything else pretty much unchanged.

well, not exactly unchanged. In this situation, dancers would have to obtain a NYC business license, would have to report their 'gross sales' as well as paying 8% of those gross sales in sales taxes. However, reporting those gross sales also leads to a federal, state and NYC income tax liability ... which might produce a significantly higher amount of total tax revenues than the sales tax.

As to 'employee' status and union membership being 'good' for the industry, we'll have to agree to disagree. IMHO anything which leaves total customer spending unchanged while diverting more customer dollars away from dancers is NOT a 'good' thing. Between worker's comp / unemployment insurance payments starting to flow to the state, and union dues starting to flow to the union, the numbers come out significantly 'worse' for dancers.

knightwish
02-16-2014, 01:38 PM
well, not exactly unchanged. In this situation, dancers would have to obtain a NYC business license, would have to report their 'gross sales' as well as paying 8% of those gross sales in sales taxes. However, reporting those gross sales also leads to a federal, state and NYC income tax liability ... which might produce a significantly higher amount of total tax revenues than the sales tax.

Remember that's business income that they could offset with other expenses in a way that personal income can't be offset. So for example their stripping business might own their car and they only have to pay tax on when they use it for personal reasons, they might be able to deduct closets, clothing... But I agree with your basic points.


As to 'employee' status and union membership being 'good' for the industry, we'll have to agree to disagree. IMHO anything which leaves total customer spending unchanged

If you want to stop OK. But I'm not sure that the effects of unionization would leave customer spending unchanged. For example you and I both agree that the loss of strip clubs being a tax deductible entertainment expense was a big hit to the strip club economy. That could change back with unionization. As for workers comp / unemployment net net I suspect that might be hugely in favor of dancers because for example I suspect dancers have less stable employment.

Melonie
02-18-2014, 10:27 AM
For example you and I both agree that the loss of strip clubs being a tax deductible entertainment expense was a big hit to the strip club economy. That could change back with unionization.

Such a development would indeed be a 'game changer'. And I can see where union lobbying might draw some favorable response from legislators.

However, the fact remains that the original reason that strip club expenditures were ruled to be non-deductible as a customer business expense stemmed from a sex discrimination case filed by a female salesperson. The court ruled that male salespersons' ability to 'entertain' the firm's predominantly male clients in strip clubs provided the male salespersons with a sex based business 'advantage'. This snowballed into the IRS disallowing business expense tax deductions for strip club expenditures, as well as all corporations disallowing employee reimbursements for strip club expenditures as 'insulation' against future sex discrimination based lawsuits.

While union lobbying to restore the strip club tax deduction would benefit 'strippers', it would also 'walk back' progress in regard to equal rights for women in the 'vanilla' business world. Thus IMHO union lobbying to restore the strip club tax deduction an extremely LOW probability event !

Also, there are a number of potential side effects from dancer unionization that could indirectly REDUCE customer spending levels. A major one is obviously 'seniority rights', which would make it much more difficult for clubs to 'fire' dancers who are aging 'ungracefully', thus more difficult for the club to hire hot new dancers to maintain customer interest levels.

knightwish
02-18-2014, 10:53 AM
Such a development would indeed be a 'game changer'. And I can see where union lobbying might draw some favorable response from legislators.

However, the fact remains that the original reason that strip club expenditures were ruled to be non-deductible as a customer business expense stemmed from a sex discrimination case filed by a female salesperson. The court ruled that male salespersons' ability to 'entertain' the firm's predominantly male clients in strip clubs provided the male salespersons with a sex based business 'advantage'. This snowballed into the IRS disallowing business expense tax deductions for strip club expenditures, as well as all corporations disallowing employee reimbursements for strip club expenditures as 'insulation' against future sex discrimination based lawsuits.

That's good information! I'd heard about the IRS on expenditures and the lawsuits but didn't know they were connected. Anyway obviously that's the IRS grossly overstepping. They have no right to disallow an expense because its use might lead to discrimination. Hotels can still deduct the cost of white sheets. I would think a powerful political ally like unions would be good for trimming the IRS's sails on this one.

Moreover, since you brought it up I'll just throw in my $.02. I've worked with lots of female salespeople that loved to entertain in strip clubs. It was a way for them to up or displace the sexual tension that might already exist without they themselves crossing any lines. I hate this paternalistic crap towards female salespeople that led to this rulings. If I could take female clients to get a facial and a pedicure before almost every meeting, where I need them relaxed I'd be thrilled to do it. When it is female salespeople or project managers that work for me my policy is that "if the clients wants a blow job you buy him one and just so he doesn't feel awkward you get one too". :) I'll tolerate the ultra conservative women that won't show naked elbows being prudes, but beyond that we all do shit for clients we don't like. Wall Street is a miserable place to work for hundreds of reasons if people want to fix that more broadly that would be great for the country. But until they do, dealing with naked girls is way down low on the problems.

Melonie
02-19-2014, 04:19 AM
dealing with naked girls is way down low on the problems

That's actually my assessment regarding how a union is likely to feel about a comparative handful of 'strippers' being added to its member base. Taking an active public position in support of 'strippers' ( and against the IRS and 'vanilla' female workers ) would risk both alienating certain groups of existing union members, as well as alienating certain groups of traditional union supporters who arguably view strip clubs as 'exploitation factories' for women that should be closed down or forced to mutate into a new, unsustainable, business model and who view businesses / corporations as exploitive villains who certainly don't need a new tax break for 'adult entertainment' expenses.

At any rate, this discussion is drifting away from the main topic

knightwish
02-19-2014, 08:11 AM
At any rate, this discussion is drifting away from the main topic

You are a smart dancer (x-dancer?) who thinks about the industry carefully. I've found you to be insightful, and even when I disagree your reasoning makes sense. If I'd love to discuss some of these issues more in a thread targeted. So I'm happy to open one up: 2030 strip club crystal-ball about where the industry is headed.

If not well I'll catch you the next time.

Melonie
02-19-2014, 12:13 PM
2030 strip club crystal-ball about where the industry is headed.

that's too easy ...

(snip)"Dubbed Roxxxy (yes, developer True Companion actually did that with the name) the sexbot is a step ahead of your Ryan Gosling costar. She stands at an average height of 5-foot-7, and weighs a waifish 60 pounds. Like any good sex partner, Roxxxy has lifelike skin, and can move her limbs. Interestingly, Roxxxy evolved from True Companion’s line of healthcare robots that were designed to look after the elderly, which perhaps means that she’ll one day be able to cook you breakfast after a regretful night. This, actually, is True Companion’s intent, which is noticeable in the name of the company itself. Rather than creating a sexbot that can simulate real sex to the best of its robotic abilities, True Companion’s aim is to provide its namesake: a true companion. It aims to make a girl or boyfriend instead of a mute doll that you hide during dinner parties.

True Companion makes Roxxxy more than just a lifeless doll by including various motors and responses in the model. She is able to move her private inputs — as the company calls them — when they are being utilized, thanks to dedicated sensors. The bot is also able to mimic an orgasm, so you aren’t the only one having them. She is able to listen and carry on a conversation with the help of some light artificial intelligence installed on a computer embedded in the sexbot. On top of all that, the sexbot comes with pre-programmed personalities, such as shy, outgoing, experienced, or new to the whole thing and in need of some guidance. The bot also cycles through moods, such as tired or horny, so sometimes it just won’t be in the mood, or sometimes you won’t be.

You can customize you sexbot’s personality, and creepiest of all, you can trade them online with friends if you’re proud of your amalgamation of a shy, inexperienced, horny sexbot. True Companion’s product page likens this to wife swapping, but without any of the drama.

Though more sophisticated than a doll that just slumps over on the couch, True Companion’s tech is more or less responsive to stimuli or running on a pre-programmed loop, rather than acting on its own. There is tech out there that, combined with Roxxxy, could create a much more believable companion. A new type of e-skin is responsive to touch, and if combined with Roxxxy, could create a more dynamic response to human advances. Another piece of tech combines augmented reality with a tangible robot in order to create a system where the tactile sensation of the robot can mimic the sensations the AR character would be inducing. Combined with Roxxxy, this could lead to that tactile sensation feeling like a human being, rather than a metal limb.

Variations of the sexbot have been in development since 2001, but a version that is mobile is actually planned for sometime later this year.(snip)

Apply 15 years worth of additional technical developments, and you wind up with ?????

jack0177057
02-20-2014, 08:45 PM
By officially ruling that exotic dancing is not 'artistic performance', the court weakens possible 'independent contractor' legal arguments, and thus lays the legal groundwork for clubs to be considered 'employers' and dancers to be considered 'employees'.

Also by officially ruling that exotic dancing is not 'artistic performance', the court weakens possible 'free speech' arguments, and thus lays the legal groundwork for new laws / regulations being enacted against strip clubs.

This case dealt with a New York State sales tax. NY has the power to impose a sales tax, the power to make exemptions to its sales tax, and the power to interpret its law relating to its sales tax. This does not mean they are interpreting or altering the First Amendment of the U.S. constitution.

The exemption from NY sales tax "applies to a production of live dramatic or musical arts performances that will be presented in a theater or other similar place of assembly in NYS (excluding roof gardens, cabarets, or other similar places), with a seating capacity of at least 100 permanently installed seats. It must also be shown that, at the time of purchase, the named production/performances will be presented to the public at least five times a week for a period of at least two consecutive weeks..." -- See the exemption certificate -- http://www.tax.ny.gov/pdf/current_forms/st/st121_9_fill_in.pdf

NY may decide what type of "dramatic or musical arts performances" qualify for their sales tax exemption, but that does not mean they are interpreting or changing the First Amendment, or any other law. Very often, the same words mean different things for state law than they mean for federal law and the same words can even mean different things for different purposes within state or federal law. (E.g., "minor" or "underage" can mean under 17, under 18, or under 21 - depending on what the legal matter is.) NY's interpretation of "dramatic or musical arts performances" applies only to their NY state sales tax exemption. They can write their own sales tax laws as long as they don't trample on anyone's constitutional rights (e.g., by unconstitutional discrimination).

With regards to U.S. Constitutional law, the First Amendment protection on free speech/artistic expression protects adult entertainment (unless it is "obscene") and this remains intact. However, keep in mind that this protection is not an absolute freedom, "time, place and manner" restrictions are permissible (e.g., age restrictions, licensing requirements, touching restrictions, zoning, tax, etc.) --- http://smallbusiness.findlaw.com/business-laws-and-regulations/adult-entertainment-law-zoning-and-other-regulations.html

Also, free speech does not mean "free" as in free from federal and state taxes, unless the taxes are so onerous as to effectively stamp out the free speech. We pay sales taxes on our purchase of books, movies, pictures, art, etc.

The only way for a club to combat a state sales tax like this is to claim some type of unconstitutional discrimination (e.g., against clubs or dancers or against the content of their free speech, i.e., the grinding), but this is an uphill battle, since clubs and dancers, do not fall into a protected class (e.g., race, religion, gender, etc.) Another NY club has already tried this, but the U.S. Supreme Court was not interested in hearing the case. -- http://www.timesunion.com/local/article/Strip-club-case-won-t-be-visiting-Supreme-Court-4896147.php

My question is - why is the club responsible for collecting the NY sales tax on LDs? This only makes sense to me if the club collects the LD fees. Do all NY clubs collect LD fees? (E.g., they collect the LD fees from the customers and issue customers tokens to pay the dancers.) Here in Texas, we pay the dancers directly, so, if sales taxes were imposed on LDs in Texas, it would seem to me that the dancer, not the club, would be responsible for collecting the sales tax on the LDs.

knightwish
02-21-2014, 09:01 AM
My question is - why is the club responsible for collecting the NY sales tax on LDs? This only makes sense to me if the club collects the LD fees. Do all NY clubs collect LD fees? (E.g., they collect the LD fees from the customers and issue customers tokens to pay the dancers.) Here in Texas, we pay the dancers directly, so, if sales taxes were imposed on LDs in Texas, it would seem to me that the dancer, not the club, would be responsible for collecting the sales tax on the LDs.

I don't know the rules regarding dances but for services in general if I have a state sales tax ID I have an obligation to not facilitate avoidance. I can't take a fee to assist you in selling a bunch of servers which you then sell to a client without paying sales tax without incurring legal liability. So if you buy stuff from me either:
a) I need to charge you tax and assume you are the end user
b) I need to know your sales tax ID and report that transaction

So in your model the dancers would need to have IDs. Now IDs are of course a matter of public record and need to be held by a legal entity. Which means dancers would need to have an LLC or DBA for their stripping name. That legal entity needs to have a person of record as a point of contact which is a public record.... All this could be handled easily via. a corporate entity except for the pandering laws complicating everything.

Melonie
02-21-2014, 10:01 AM
^^^ and certain pundits would tell you that the legal particulars of having dancers collect, report, and forward NYS sales tax payments is a 'win-win' situation for the state. One outcome is that the state tax people can back-calculate the total 'sales' made by individual dancers based on TIN / State Tax # matching, thus increase their tax revenues by forcing more accurate income reporting on state ( and federal ) tax returns. Another outcome is that clubs start treating dancers as 'employees' thus allowing the club to collect, report and forward NYS sales tax payments ... which also provides the state tax people with W2 income reports for each individual dancer.

In both cases, the collection of sales tax is a mechanism to indirectly force fuller reporting of club and dancer incomes. And as a former NY resident, I can confirm Knightwish's observation that requiring independent contractor dancers to collect sales tax on private dances would in turn force the dancers to 'register' their businesses with the state and obtain a State Tax # ( although forming an LLC or S-Corp is not required ) ... which becomes a matter of public record, as well as an info source for the IRS and NY State Tax agency, as well as a source for the collection of annual 'business license' fees.



Has any court ever held that an LD is an artistic performance and has 1st amendment protection?


However, keep in mind that this protection is not an absolute freedom, "time, place and manner" restrictions are permissible (e.g., age restrictions, licensing requirements, touching restrictions, zoning, tax, etc.

Indeed, all of this tracks back to a US Supreme Court Decision Erie vs PAPS ... where justice Sandra Day O'Connor's majority opinion set out a number of points that 'eroded' 1st amendment protections for 'erotic' dancing !!!

jack0177057
02-21-2014, 12:04 PM
^ It depends how you look at it - "glass half full" or "glass half empty". Try to imagine the writers of the Constitution sitting in a room with visions of a new nation free from tyrannical monarchies and trying to develop a concept of freedom of speech. I think what they had in mind after risking their lives to pursue a dream of a new democratic sovereign nation was very different than pole dancing and LD grinding. The fact that the First Amendment has become the savior of porn and the adult entertainment industry is quite remarkable and has to do with the fact that there were very liberal justices on the Supreme Court when the critical First Amendment cases relating to porn and adult entertainment were decided. (These liberal justices created the notion that the Constitution is a "living" and "breathing" document that evolves all by itself, so that the original historical meaning of its words becomes irrelevant, and the Constitution says whatever the justices on the Supreme Court, in their ultimately wisdom, say the Constitution says - kind of like ancient priests reading an oracle.)

A more conservative, literal and historical interpretation of the First Amendment, at those critical times in the Supreme Court, could have had the effect of allowing states to complete wipe out porn and adult entertainment. (Except that, given how profitable adult entertainment is and how many different business industries benefit either directly or indirectly from adult entertainment, it is more likely that business interest would have prevailed at the state levels to continue to allow some forms of adult entertainment.)

knightwish
02-22-2014, 01:43 PM
These liberal justices created the notion that the Constitution is a "living" and "breathing" document that evolves all by itself, so that the original historical meaning of its words becomes irrelevant, and the Constitution says whatever the justices on the Supreme Court, in their ultimately wisdom, say the Constitution says - kind of like ancient priests reading an oracle.

No one has ever proposed that sort of interpretative framework. Conservative and liberal justices want to modernize laws to apply to new situations. Should for example the IRS feel free to leak electronic tax returns for political purposes since they aren't "written"? The fault for courts having to make these kind of choices are the legislatures that don't update black letter law on a regular basis, thus creating the ambiguities of law that justices need to resolve.



A more conservative, literal and historical interpretation of the First Amendment, at those critical times in the Supreme Court, could have had the effect of allowing states to complete wipe out porn and adult entertainment.

A literal reading of the 1st amendment would prohibit all abridgments of the press. A literal reading of the 14th would prevent the states from doing this either. The only way you can possibly have any controls on porn is making an argument against the literal interpretation and going for a historical non-literal interpretation.

Melonie
02-24-2014, 04:17 AM
Justice O'Connor wrote the majority opinion ... from

(snip)"Justice O'Connor concluded that the ( Erie PA strip club ) ordinance did not violate the First Amendment. She reasoned as follows.


1. Nude dancing is expressive conduct although it falls in the outer limits of First Amendment protection.

2. The ordinance regulates conduct and is not aimed at suppressing nude dancing's erotic message. The ordinance's preamble suggests its purpose is to prohibit erotic dancing but it is aimed at combating crime and other negative secondary effects caused by adult entertainment establishments. The secondary effects address public health, safety, and welfare. The interest in combating secondary effects is unrelated to the suppression of the erotic message.

3. The ordinance does limit one way to express an erotic message. In some cases, banning one way of expression does essentially ban the message but that is not the case here. The dancers can perform wearing pasties and G-strings and any effect on the overall expression is minimal.

4. The ordinance does not regulate expression on the basis of its content.

Justice O'Connor stated that the ordinance is valid if it satisfies the test for evaluating restrictions on symbolic speech: (1) the regulation must be within the constitutional power of the government, (2) the regulation must further an important or substantial government interest, (3) the government interest must be unrelated to the suppression of expression, and (4) the restriction must be no greater than necessary to further the government interest. She stated that the ordinance met these four requirements and reasoned as follows.


1. Protecting public health and safety are within the city's police powers.

2. Regulating conduct and combating harmful secondary effects are important government interests. The city can use evidence of secondary effects compiled by other cities and does not need to conduct new studies if the evidence is relevant to the problem. Erie also made its own findings and the city's expert judgment about its own community should not be doubted unless it is challenged. The ban may not greatly reduce the secondary effects but the city must have a reasonable opportunity to experiment with solutions for serious problems.

3. The state's interest in preventing harmful secondary effects is not related to the suppression of expression.

4. The ordinance regulates conduct and any incidental impact on expression is minimal. Requiring dancers to wear pasties and g-strings is a minimal restriction that furthers the government's interest and allows the dancers to convey their erotic message."(snip)


THAT was how the SCOTUS justified a position that a local gov't requiring dancers to wear pasties and G-strings was NOT a significant restriction of the dancers' 1st amendment right of free expression ... and where the SCOTUS specifically stated that erotic dancing is ( only ) protected at the outer limits of the 1st amendment. Arguably, this decision set a precedent that erotic dancing in a strip club does NOT enjoy the same degree of 1st amendment protection as, say, dancing in a Broadway production ( where nudity is fully protected free expression ). The most recent NY court ruling re sales tax collections 'cashes in' on that decision.

jack0177057
02-24-2014, 03:15 PM
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jack0177057
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jack0177057
02-24-2014, 03:31 PM
No one has ever proposed that sort of interpretative framework. Conservative and liberal justices want to modernize laws to apply to new situations. Should for example the IRS feel free to leak electronic tax returns for political purposes since they aren't "written"? The fault for courts having to make these kind of choices are the legislatures that don't update black letter law on a regular basis, thus creating the ambiguities of law that justices need to resolve.

Ask any lawyer how he/she interprets any ambiguity in a law. He/she will say that the language in the applicable bill and statute is the first thing you look at, but, if there are any ambiguity and question of interpretation, you must look at the legislative history (committee reports, floor debates, etc.) and prior case interpretations.

In the case of the U.S. Supreme Court, the liberal justices (Brennan's court) created the doctrine of the "Living Constitution". This means that the Constitution is an evolving thing (like a spirit), and instead of looking at legislative history, or the intent of the framers of the Constitution, we look to the nine priests in black robes that consult with the oracles, and, in their infinite wisdom, announce to the rest of us the current state of the Constitution's evolution. Usually this has benefitted the liberals and has resulted in some good outcomes (civil rights, etc.), but, it has been taken too far in some cases (like murderers being set free because of some Miranda warning technicality, etc. -- try to find Miranda warnings in the Constitution). Also, if the majority of justices are conservatives, the Constitution may just happen to evolve in a conservative direction. (The current conservative justices on the Supreme Court have shown a lot of restraint - they allowed Obamacare to become the law, and have not overturned Roe v. Wade .)

http://en.wikipedia.org/wiki/Living_Constitution


A literal reading of the 1st amendment would prohibit all abridgments of the press. A literal reading of the 14th would prevent the states from doing this either. The only way you can possibly have any controls on porn is making an argument against the literal interpretation and going for a historical non-literal interpretation.

Even the very liberal Supreme Court Justice Brennan had this to say in in a 1957 Supreme Court case, Roth v. United States, 354 U.S. 476 (1957):



In Roth, the primary constitutional question is whether the federal obscenity statute violates the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code invade the freedoms of speech and press as they may be incorporated in the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment.

....

The guaranties of freedom of expression in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, and all of those States made either blasphemy or profanity, or both, statutory crimes. As early as 1712, Massachusetts made it criminal to publish "any filthy, obscene, or profane song, pamphlet, libel or mock sermon" in imitation or mimicking of religious services. Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), Mass.Bay Colony Charters & Laws 399 (1814). Thus, profanity and obscenity were related offenses.

In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance...

The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec:

"The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs."

All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572:

". . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ."

We hold that obscenity is not within the area of constitutionally protected speech or press.

(End of Quote)

In fact, even today, "obscenity" is not protected by the First Amendment. However, very few things constitute "obscenity" today - it has to be extremely gross and repugnant to be considered "obscenity".

http://www.firstamendmentcenter.org/pornography-obscenity

Melonie
02-25-2014, 04:10 AM
^^^ was Brennan the SC Justice who, when unable to set forth a clear definition of obscenity, simply said "I know it when I see it" ?

jack0177057
02-25-2014, 06:41 PM
^^^ LOL.

In explaining why the movie "The Lovers" was not obscene under the Roth test, and therefore was protected speech that could not be censored, Justice Potter Stewart wrote:

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

— Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964), regarding possible obscenity in The Lovers.

The expression became one of the most famous phrases in the entire history of the Supreme Court.

http://en.wikipedia.org/wiki/I_know_it_when_I_see_it

knightwish
02-26-2014, 06:19 AM
Ask any lawyer how he/she interprets any ambiguity in a law. He/she will say that the language in the applicable bill and statute is the first thing you look at, but, if there are any ambiguity and question of interpretation, you must look at the legislative history (committee reports, floor debates, etc.) and prior case interpretations.

I agree. But that's not interpreting it literally. Literal interpretation and historical critical are two different and conflicting hermeneutics.


In the case of the U.S. Supreme Court, the liberal justices (Brennan's court) created the doctrine of the "Living Constitution". This means that the Constitution is an evolving thing (like a spirit), and instead of looking at legislative history, or the intent of the framers of the Constitution, we look to the nine priests in black robes that consult with the oracles, and, in their infinite wisdom, announce to the rest of us the current state of the Constitution's evolution.

No it doesn't mean that and they've never advocated that. What it does mean is that when a statute is ambiguous as a result of changing circumstance, if the intent of the statute is clear then it can be applied this new circumstances. Which is what you are advocating for a paragraph earlier in this post. FOXNews is propaganda Jack.


Usually this has benefitted the liberals and has resulted in some good outcomes (civil rights, etc.), but, it has been taken too far in some cases (like murderers being set free because of some Miranda warning technicality, etc. -- try to find Miranda warnings in the Constitution).

Easy. The constitution prohibits people being compelled to testify against themselves and requires them to be secure in their persons. That statutes and process that existed prior to Miranda often resulted in people being compelled to testify against themselves and didn't offer security in their persons, hence they were unconstitutional and different processes were needed. The court offered the Miranda warning as an example process that would pass constitutional muster.


Even the very liberal Supreme Court Justice Brennan had this to say in in a 1957 Supreme Court case, Roth v. United States, 354 U.S. 476 (1957):

He wasn't interpreting it literally, you were arguing that a literal interpretation wouldn't ban obscenity. Your evidence is tangential to your point.

jack0177057
02-26-2014, 02:27 PM
I agree. But that's not interpreting it literally. Literal interpretation and historical critical are two different and conflicting hermeneutics.

You start with the literal language of a bill or statute, but it's not hard to find ambiguities. Words have limitations. To quote former President Clinton: "...It depends on what the meaning of the word 'is' is. "

This is specially true with regards to the U.S. Constitution which is written so broadly that it cannot be taken it too literally. Taken literally, I can create a new religion that allows me to rape, murder and commit acts of terrorism and I could demand my rights to practice my religion. Taken literally, freedom of speech would allow me to yell "fire!" in a crowded nightclub (causing hundreds of people to die), to tell your father that your mother is unfaithful (a defamation, if untrue), to share porn with your 5-year old sister, etc.

To resolve ambiguities in the law there are a number of "rules on construction," that lawyers and judges use, but usually, you try to discern the intent of the drafters of the law. You don't treat the law like it has a spirit and it is a mythical being that evolves on its very own - unless you are a liberal justice on the U.S. Supreme Court. If situations change or a law become abhorrent, you either repeal the law or you amend it.

With regards to your comment, "Conservative and liberal justices want to modernize laws to apply to new situations." There is a difference between extending the law to apply to new situations (all laws are capable of doing that) versus the "living Constitution" doctrine which does more than that, it actually gives life to the Constitution so that it evolves on its own.

At one time the Constitution did not protect women, racial minorities, gays and lesbians, etc., nor did it protect pornography, etc. These people and things existed back then, as much as they exist today (they did not just pop out of nowhere in recent times). Old Supreme Court opinions read the Constitution (using the normal legislative intent methods of interpretation) as allowing many forms of abhorrent discrimination and persecutions. According to the legal scholars on the Supreme Court, the Constitution did not prohibit slavery, separating blacks from whites, jailing homosexuals, locking up people of Japanese descent, treating women as inferiors, etc. The cure for the bigotry of the past were new amendments to the Constitution. The 13th amendment prohibited slavery (which was Constitutional until then); the 15th amendment gave blacks the right to vote (it was Constitutional until then to deprive them of this), the 19th amendment gave women the right to vote (it was Constitutional until then to deprive them of this); etc.

When the "living Constitution" justices/priests came to the Supreme Court, they did not need amendments anymore because they used magic - the Constitution "evolves" on its own. They would say that, these old abhorrent Supreme Court decisions reflected a time when the Constitution was in its primitive stages of "evolution". They disregarded legislative intent and prior cases, because - instead, they look deep into the oracle and discover a new Constitution that had evolved on its own! Then, these "living Constitution" justices/priests write new opinions that reflected the "evolved" mythical spirit of the Constitution.

But, the liberals are now afraid that this trick will back-fire! With a conservative majority, the conservative justices could also look at the oracle and see a vision of another evolution - humans in fetus form could become a protected class! They were once held in low status and discriminated against (Roe v. Wade), but, like other discriminated classes, their time may come. The "living Constitution" can one day evolve to recognize their protection! This thought makes the liberals wake up sweating in the middle of the night! But, it is a nightmare they created. The nine justices/priests could see anything in their oracle/crystal ball, and we would have to accept that what they see is our "evolved" Constitution. If the majority of the justices (5 justices) do not reflect your own political orientation, this is a very scary thought.

You don't need to listen to FOXNews, any basic Constitutional law book will explain the conflict and difference between the "originalists" and the "living Constitution" justices.


Easy. The constitution prohibits people being compelled to testify against themselves and requires them to be secure in their persons. That statutes and process that existed prior to Miranda often resulted in people being compelled to testify against themselves and didn't offer security in their persons, hence they were unconstitutional and different processes were needed. The court offered the Miranda warning as an example process that would pass constitutional muster.

The Bill of Rights of the Constitution prohibits the government from depriving citizens of their rights, but, it does not mandate an educational program to turn every criminal suspect into a scholar of Constitutional law. I actually agree that Miranda warnings is a good idea and that criminal suspects should be advised of their basic civil rights, but I don't see that written in the Constitution, no matter how hard I try with a magnifying glass. A new federal law requiring Miranda warning would have been more suitable. Just because a new law is a good idea should not give Supreme Court justices the right to create the new law themselves, and proclaim that they got it from the oracle of the Constitution. Also, last I checked, basic Constitutional rights are taught in elementary schools and high schools, which are mandatory education. If someone is cutting school to rob or rape people, they deserve to be ignorant about their Constitutional rights. - Just my opinion.