Third District Judge Leonard H. Russon Friday took under advisement a motion to dismiss a civil suit brought by several businesses charging Salt Lake City's sexually oriented business ordinance is unconsti-tutional.
The plaintiffs, including three escort services, the Utah Dancers Association and other adult businesses, filed suit May 1 demanding that the ordinance be declared unconstitutional and not be enforced.During arguments on several motions before the court, attorneys for the businesses contended the ordinance, passed by the City Council in April and facing almost continual controversy since, is too restrictive.
Some sexually oriented businesses are currently operating in compliance with the ordinance, but Russon in May issued a restraining order on the law, voiding its jurisdiction over the plaintiffs in the suit.
Dancers, models and escort services - some of whom may conduct parts of their business in stages of undress while using sexually explicit language - are guarded by First Amendment rights to freedom of expression and freedom of association, the plaintiffs argued.
But by requiring $230 in licensing fees and other demands, the ordinance is overly burdensome, the businesses said. For example, the ordinance requires licensed nude dancers to wait 36 hours after scheduling an appearance before meeting with a client.
"If they told that to famous artists throughout history, they would laugh in their face," plaintiffs' attorney Stephen Cook said. "This is a threat to freedom of expression."
But Assistant City Attorney Bruce Baird argued the ordinance imposes reasonable regulations on sexually oriented businesses to protect the city from "the obvious next step," prostitution.
The $230 fee is only an "incidental regulatory costs" not unlike fees placed on other businesses and the 36 hour time regulation does not prohibit, it only regulates, licensed dancers from dancing nude.
Without the ordinance, performers would be "dancing naked in the courtroom," Baird said.
Plaintiffs and the city agreed the suit only was a "facial attack," or one in which the plaintiffs were challenging the purpose of the ordinance, not a specific, inappropriate enforcement of the law.
But Baird argued that the U.S. Supreme Court has ruled that such attacks in First Amendment situations are only valid in "core First Amendment questions," such as freedom of press.
The right to nude dancing is not analogous to freedom of speech, he said.
"Let's face it, no one is going to send their children off to war to defend the rights of escorts to go out on paid dates," Baird told the court.
But the plaintiffs' co-council, Jerome Mooney, argued sexually oriented entertainment was protected by the First Amendment and a facial attack was necessary to prevent speech privileges from being trampled by the city.
Additionally, the businesses argued the ordinance could be construed to affect nurses and home-care givers who would be viewed as escorts under the ordinance.
"I can tell you now the city will never . . . attempt to apply the (sexually oriented business) ordinance to nurses," Baird countered.