From: ookookook@yahoo.com (Ook!)
Newsgroups: alt.sex.strip-clubs
Subject: ASS-C: AFTSD 2003. A Modest Proposal (or I'm First! Nyah!)
Date: 28 Nov 2003 16:02:32 -0800
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Real Mail from Real Losers:

"...gee Ook, you're even fatter and uglier in person, why is that?"

"Which dick is smaller, SaiBaba's or a gnat's?"

"...your reviews are depressing, do you ever have a good time?"

"Portland must have a hundred or more strip clubs, why is that?"

As Rosanna Rosannadanna would say" "You ask a lot of stupid
questions!"

While all are excellent topics for A Fail To Suck Day post, please
allow me to address the last, and start the suck failing for 2003...

The Issue:
Since the free speech articles in the State of Oregon Constitution
prohibit restriction of commercial speech based on content,
municipalities do not have the ability to exclude sexually oriented
businesses. People who oppose the resulting proliferation of adult
businesses have sought remedies through ballot measures and zoning
ordinances that have been routinely rejected by voters and courts.
Organizations such as the American Civil Liberties Union (ACLU) and
the Association of Club Executives (ACE) have successfully campaigned
and litigated against exclusion of sexually oriented businesses and
have frequently argued for less regulation even when it does not
exclude adult businesses from a municipality.

As a result, regulation of sexually oriented businesses in Portland is
essentially impossible, since the State Supreme Court's 1987 decision
determined that the state constitution protects obscenity as free
speech, with all efforts to modify those free speech provisions being
rejected by voters. Opponents of sexually oriented businesses have
steadfastly refused any compromises, and continue to hope that they
can eventually modify the constitution if they repeat their failed
tactics often enough.

A History Lesson:
Sixty representative territorial delegates wrote the Oregon State
Constitution in 1857. It was approved by voters the same year, and
went into effect when the state was admitted into the Union in 1859.
The constitution was framed with several unique features, most notably
an unusually broad protection for any and all forms of expression: 
"No law shall be passed restraining the free expression of opinion, or
restricting the right to speak, write, or print freely on any subject
whatever." (Oregon Bluebook 2002)

With respect to obscenity, interpretation of the state constitution
was much like that of other states until a case came before the
Supreme Court in the late 1980's. In 1983, an adult bookstore owner in
Redmond was charged, tried, and convicted in Deschutes County Circuit
Court with dissemination of obscene material. The bookstore owner,
Earl Henry, was sentenced to 60 days in jail, and immediately appealed
his case to the State Supreme Court with the help of the ACLU. Henry
argued successfully that the statute was unconstitutional, with the
prevailing opinion stating that "In this state, any person can write,
print, read, say, show or sell anything to a consenting adult, even
though that expression may be generally or universally considered
obscene."  (Fidanque, 2002)

Soon after, the same body of judges re-affirmed the Henry decision,
and struck down the City of Portland's attempts to regulate adult
bookstores through zoning ordinances (Portland v. Tidyman). When the
case came before the court, the city couldn't prove any real harm came
from such businesses. As a result, the court stated that it was
obvious that they were trying to limit the owner's freedom of
expression based on the content of the materials they were selling.
Although the city of Portland made claims that such businesses attract
criminal activities such as drug dealing, assault, or prostitution, it
hadn't made any significant effort to document and prove its case.
(O'Hagan 7)

As a result of these two decisions, (Henry v. Oregon and Portland v.
Tidyman), Oregon joins Hawaii as one of the only two states that
constitutionally bar restricting adult, or sexually oriented
businesses.

Measure 87:
Current arguments related to adult business regulation were recently
summarized in the Fall 2000 Voter's Pamphlet entry for Measure 87,
where the current voices for and against zoning sexually oriented
establishments stated their case in brief outlines. (Voter's Pamphlet
2000) While people who opposed regulation of sexually oriented
businesses universally appealed to free speech arguments, people who
favored regulation of sexually oriented businesses fell into two
camps- moralists wishing to exclude businesses on religious grounds
and neighborhood activists wanting to exclude businesses based on
their economic effects.

Librarians, bookstore owners, libertarian candidates for office,
lawyers, artists, and art gallery owners represented arguments against
the measure. Their arguments appealed to voter's idealism, and implied
that reducing any freedom of expression would be the start of a larger
campaign to eliminate sexually oriented businesses, ban books, and
restrict more widely accepted forms of entertainment like popular
movies. These arguments did not make any attempt to cite statistics,
nor did they try to explain how approval of the measure would lead to
the drastic consequences listed in their briefs.

Evangelical Protestants, conservative Catholics, politicians, and
neighborhood activists represented arguments supporting the measure.
Religious groups and politicians made moral arguments appealing to
people's emotions, citing the need to protect children, families, and
the purity of our eternal souls, while arguments made by neighborhood
activists stated that concentrations of adult businesses lowered
property values and reduced the quality of life in surrounding
neighborhoods. Their economic arguments were the only ones that
included statistics, such as the decline of property values in
Indianapolis and increased sex crimes in Austin, but they didn't cite
their sources so the reader could interpret their studies for
themselves. The neighborhood activist arguments seemed to appeal to
rational thinkers, but were cleverly disguised emotional please filled
with unsupported assertions masquerading as scholarly statistics. For
example, the Austin study quotation was intended to make people think
that violent crimes such as rape are correlated with the existence of
sexually oriented businesses. Looking at statistics from more
permissive countries such as England or Holland that have higher
densities of sexually oriented businesses, you'd expect to see that
they had a much higher incidence of rapes.

According to the United States Bureau of Justice Statistics, there is
no correlation between sexual assaults and the density of sexually
oriented businesses. As of 1996, England and Wales had a rape rate one
third of that of the United States (United States of America 1996) and
The Netherlands (European Sourcebook of Crime and Criminal Justice
2000) had a rape rate one fifth that of the United States. These
statistics directly contradict the implied cause and effect
relationships claimed by neighborhood activists.

With the defeat of Measure 87, many of the loudest voices in the
debate have moved on or been ignored by local media. However, club
owners, cities, and administrative commissions have continued to test
regulations and rules governing strip clubs in court. As the mayoral
race in Portland begins to gather steam, politicians are trying to use
strip club zoning as a campaign issue, while the Oregon Liquor Control
Commission (OLCC) has tightened administrative rules governing
subjects ranging from the age of contractor-perfumers to the mandatory
distance separating strip club patrons and contractors.

Mayoral candidate and City Commissioner Jim Francesconi helped draft
the Oregon State House Resolution that authorized ballot measure 87
and has recently directed a resolution through the Portland City
Council to file court briefs supporting the City of Nyssa's attempt to
enforce land use regulations in a suit filed against Miss Sally's
Gentleman's Club. The Oregon Appeals Court sustained a judgment in
favor of the city of Nyssa, with the case moving to the State Supreme
Court this fall. (Kaiser 73).

While the never ending attempts by cities to zone and regulate strip
clubs grinds on, the one governmental organization that has had
success in regulating the activities of sexually oriented businesses
has been the Oregon Liquor Control Commission. As business entities,
Strip Clubs in Portland are essentially bars. Bars that make their
money by selling alcohol and by operating Video Poker machines for the
State Lottery.  Nude dancing is simply a way to draw in customers who
would otherwise drink and gamble in the thousands of other bars
scattered around Oregon. The OLCC has the power to effectively close a
club by cutting its revenue stream without warning or recourse. For
example: An auditor sees conduct that they deem lewd; the
establishment's liquor license is immediately suspended or revoked;
the establishment is closed on the judgment of that auditor. (Exotic
1997) Such judgments usually wind up in court, and are often reversed,
but not before the low margin business entity has exhausted its cash
reserves, finds itself unable to pay its bills, and is forced out of
business.

 
With this life and death power over bars, the OLCC has successfully
created and enforced administrative rules that have never had the
benefit of public consent.  For example, they've recently prohibited
women under 21 from working as performers although 18 year olds are
considered adults in the State of Oregon with the same freedom of
expression as 21 year olds. After a brief public hearing in Salem
attended by a few First Amendment Attorneys representing Strip Club
Owners and slightly fewer religious activists, they changed and
quickly implemented the new rules- rules that were already written
before the hearing and were left unchanged after the hearing. (Dunn
2002)

Conclusions:
The residents of other states somehow manage to enjoy the same
liberties as the residents of Oregon without having to worry about a
having a noisy bar or an adult video store moving into the old grocery
store next door. Instead of being reasonable and trying to resolve the
current deadlock, people on both sides of the issue have opted for
easy political scores, intolerant religious crusades, selling car ads
on radio, and raw greed.

A Modest Proposal:
People on both sides of the issue seem determined to be as
inflammatory and melodramatic as possible. While Strip Club lawyers
try to equate a 21 year old single mother flashing her breasts in
front of beery eyed drunks with the speeches of Martin Luther King,
religious zealots run screaming through the streets about the need to
protect children and unelected bureaucrats impose arbitrary decisions
without consulting the public they supposedly serve. In order to break
the endless cycle of hyperbolic rhetoric and expensive, wasteful,
lawsuits, I'd recommend a cooling off period to increase the civility
of the combatants, public review of the role of the OLCC in Oregon
today, and appointment of a panel of former Oregon Supreme Court
judges to redraft the constitution articles concerning freedom of
expression.

During the voluntary cooling off period:
No new sexually oriented businesses would open
No new ordinances would be drafted by the Portland City Council
No new ballot measures concerning this issue would be considered
No new administrative rules would be issued by the OLCC
No new lawsuits from organizations from Owners or the ACLU would be
filed
All enforcement actions by the OLCC would be automatically suspended
pending a hearing.
The State Legislature would have a special session to debate the
relevance of the OLCC in modern Oregon, drastically altering it, or
abolishing it altogether
The State Governor would appoint a constitutional convention, with the
intent of drafting free speech articles after lengthy public
consultation

The cooling off period would end with two ballot measures- one
concerned with the OLCC and the other covering free speech. If
everything went well, and people abided by the strictly voluntary
cooling off period, perhaps it would allow all sides to construct a
fair, balanced, approach to regulating sexually oriented businesses.


Works Cited
Oregon. Oregon Bluebook. Constitution of Oregon, 2002 Edition, 2002.

Fidanque, D.J. (2001, June 19), Veto Request on HB 2413 A-Eng.,
Retrieved from http://www.aclu-or.org/legislature/2001legislature/HB2413Governor.html

O'Hagan, Maureen. "It's Free Speech Stupid" Willamette Week 3 February
1999: 7-10.

Fitzpatrick, J.M. (2000, October), Presidential Campaign Website,
Retrieved from http://pages.hotbot.com/edu/jftz/

United States of America. (1996) Bureau of Justice Statistics, Crime
and Justice in the US and England and Wales 1981-1996, Retrieved from
http://www.ojp.usdoj.gov/bjs/pub/html/cjusew96/highs.htm

European Sourcebook of Crime and Criminal Justice Statistics (2000),
Second Report, Retrieved from
http://www.europeansourcebook.org/esb/key_findings.pdf

Oregon. Oregon Secretary of State, Elections Division. Voter's
Pamphlet, November 6, 2002., 2002.

Kaiser, Randy. "Association of Club Executives Oregon Newsletter"
Exotic Magazine July 2003:73.

Exotic Magazine. (1997, December), X-Mag Archives, Retrieved from
http://www.xmag.com/archives/5-06-dec97/legal.html

Dunn, Katia (2002, July 11), Liquor Commission Redefines Lewd,
Portland Mercury, Retrieved from
http://www.portlandmercury.com/2002-07-11/city.html