ACLU Sues Idaho's Biggest Censorship Organization: Its Liquor Control Board

BOISE, Idaho—Just about three years ago, Idaho's Bureau of Alcohol Beverage Control made the news, not because bars were serving minors, not because there was an uptick in drinking-related traffic accidents, but because it had sanctioned Boise arthouse theater The Flicks for having shown the sexy Cannes Palme d’Or winner Blue is the Warmest Color. Why? Because like many other theatrical venues in the state, liquor was being sold to the theater's patrons—and the state banned "sexually suggestive art" in places that serve alcohol. Fortunately, after the ABC's enforcers had threatened several other movie theaters with the loss of their liquor licenses if they showed pretty much any R- or NC-17-rated fare, including Deadpool (!), Fifty Shades of Grey and Michael Fassbender's Shame, the state legislature finally got the message and passed House Bill 544, which revamped the state's criminal code so that unless a "film, still picture, electronic reproduction, or other visual reproduction" were actually considered obscene under the state's obscenity statute, it could be shown without any danger to the venue's ability to serve alcohol. Just one problem, though: That same bill continued the alcohol prohibition for business which would "expose to view any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of  the buttocks, vulva or genitals," or the "[e]mployment or use of any person who touches, caresses or fondles  the breast, buttocks, anus or genitals of any other person, or who is so touched, caressed or fondled by another person," or allowing such person "to wear or use any device or covering, exposed to view, which simulates the breast, genitals, anus, pubic hair or any portion thereof," or "to perform acts of or acts which simulate sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law." In other words, pretty much any nudity (even in a museum or art gallery) or any vaguely sexual act (like stripping or running a dungeon) that isn't a movie theater could still get its liquor license pulled—and that didn't sit too well with the Idaho branch of the ACLU, which has now sued the state to overturn those prohibitions. The genesis of the suit came when, according to Boise State Public Radio, "performance artist Anne McDonald did a show at the Visual Arts Collective—also known as the VAC—in Garden City. McDonald, whose act includes burlesque dance and costumes that often bare quite a bit of skin, says she was devastated when the state threatened to revoke the venue’s liquor license to enforce the law. She says she didn’t know they were in violation since the VAC is not primarily a bar." "Idaho’s liquor laws are antiquated and unconstitutional," the ACLU's complaint begins. "They impose restrictions on freedom of expression despite that the Ninth  Circuit held more than a decade ago that it was already 'clearly established that liquor regulations could not be used to impose restrictions on speech that would otherwise be prohibited under the First Amendment.' ... Live performances of theater, music and dance are guaranteed broad, prime facie First Amendment protection. Under the Constitution, 'esthetic and moral judgments about art ... are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority,'" that last quote having come from the U.S. Supreme Court case, United States v. Playboy Entertainment Group, Inc. The ACLU complaint, which can be read here, was filed just one week ago, so it's too early to know how it will be received by Idaho's district court—but considering that Idaho shares a border with Utah, which recently declared that "porn is a public health crisis," the plaintiffs here may have some tough going ahead. Pictured: Performance artist Anne McDonald.