The American Civil Liberties Union of Rhode Island (ACLU of RI) filed a “friend of the court” brief in the Rhode Island Supreme Court today, arguing that in revoking the Foxy Lady’s entertainment license earlier this month the Providence Board of Licenses’ violated the club’s First Amendment rights.
On December 19 the Providence Board of Licenses decided, on a 3-1 vote, to close the Foxy Lady, after three misdemeanor charges of prostitution were brought against three workers in an undercover police sting on December 11. All the club’s licenses were revoked, but last week the Rhode Island Department of Business Regulation restored the club’s liquor license. To overturn the Board’s decision on it’s adult entertainment license, the Foxy lady must appeal to the Rhode Island Supreme Court.
“Imagine a symphony orchestra barred by the state from performing again because a musician was found to have sold marijuana to a colleague backstage. Imagine a bookstore being shuttered by the government because peace activists planned acts of civil disobedience in a backroom. Imagine a movie theater permanently closed because an employee assaulted a patron,” said ACLU of RI executive director Steven Brown. “What the City has actually done to the Foxy Lady is no different. It is a serious attack on First Amendment rights, and we hope the Court will correct this injustice.”
Noting that exotic dancing has long been held to be a form of expression protected by the First Amendment, the brief argues that “courts must be especially vigilant to protect exotic dancing and other types of unpopular speech precisely because they face the greatest threats of suppression.”
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In calling for the Court to “immediately grant a stay of the order revoking” the club’s license, the brief argues that the First Amendment requires a stay in order to prevent “an unconstitutional deprivation of Petitioner’s free speech pending judicial review.” The brief goes on to argue that the Board’s decision “manifestly conflicts with the requirement that ordinances that require licenses to engage in protected speech must provide administrative bodies narrow, objective, and definite standards … and must not provide unbridled discretion.”
The brief explains:
“The ordinance governing the Board’s revocation decision grants it authority to revoke a license ‘for any reason which the board may deem to be in the public interest.’ … That standard exemplifies the ‘unbridled discretion’ that the Supreme Court has repeatedly found to be inconsistent with the requirements of the First Amendment. The Board’s history of providing less severe sanctions for more serious crimes at other licensed establishments, including felony acts of violence, illustrates the unconstitutionally broad power to arbitrarily restrict protected speech.”
The brief adds
“For every day that the revocation order remains in place without a stay, Petitioner has been deprived of its ability to engage in constitutionally protected speech without any judicial review. The First Amendment does not allow this result.”
“It’s clear under the First Amendment that the Foxy Lady has a right to present adult entertainment, and that right can’t be taken away arbitrarily, but the Board has claimed essentially unlimited power to suppress protected First Amendment activities for any reason it sees fit,” said ACLU volunteer attorney Jared Goldstein. “The Constitution does not allow protected rights to be taken away on the whim of administrative officials.”
A hearing on the club’s petition is scheduled to be heard by the Court on Thursday.
[This post relied heavily on an ACLU of RI press release.]
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