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March 09, 2017

Hey, Louisiana: If They Can Do Porn, Why Can't They Dance?

BATON ROUGE, La.—As pretty much everyone in the adult industry must know by now, despite occasional claims to the contrary, it is not illegal to shoot sexually explicit content in any of the 50 United States. This includes, of course, Louisiana—and all it takes to get a Bayou State gal (or guy) legally in front of the XXX cameras is a government-issued ID certifying that the person is over 18 years of age. At that point, she can engage in oral, vaginal and anal acts while partially dressed or even completely nude. What she can't legally do, however, is get up on a stage in a Louisiana bar and take off her clothes, thanks to an amendment passed by the Louisiana legislature passed last June, to take effect August 1, 2016—or at least, that was the case before three dancers filed a lawsuit challenging the statute, and a judge blocked its enforcement last October. Specifically, the law states, "Subject to the provisions of Subsection D of this Section, entertainers whose breasts or buttocks are exposed to view shall perform only upon a stage at least eighteen inches above the immediate floor level and removed at least three feet from the nearest patron and shall be twenty-one years of age or older." Everything except the part in italics has been existing law in the state for several years; it's the "twenty-one years of age or older" that was added in June. (Funny story: One of those jackasses, state Sen. Kenny Havard, had also wanted to amend the law to set a maximum age of 28 for the dancers and a maximum weight of 160 pounds, but for some reason[!], that change was voted down.) The lawsuit by Jane Does I, II and III, filed September 22, 2016, targets Commissioner Juana Marine-Lombard of the Louisiana Office of Alcohol and Tobacco Control under 42 U.S. Code §§1983 and 1988, charging that, "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia," Marine-Lombard violated the dancers' civil rights to practice their profession. "Act No. 395 introduces age-based restrictions to Louisiana Revised Statutes 26:90(E) and 286(E) which did not exist prior to the enactment of Act No. 395," the Does' complaint charges. "Specifically, Act No. 395 prohibits adults who have reached the age of majority in Louisiana but who have not yet reached the age of twenty-one from performing as erotic dancers in establishments that are licensed pursuant to Title 26 of Louisiana’s Revised Statutes." While the bill's author, Sen. Ronnie Johns, stated during consideration of the bill that it is "strictly an anti-human trafficking bill," the suit quotes other Louisiana legislators who clearly had a different motive. "Representative Robby Carter, a supporter of Act No. 395, commented during a legislative session: 'We need to do something to get these people [to] recognize that there’s another way of living, you know. I wish there was something we could do to make them [erotic dancers] go to church or something,'" the complaint states. "Representative Beryl Amedee, another supporter of Act No. 395, made the following statement to the Louisiana House of Representatives: 'Now I know a lot of people in the room are thinking of their daughters, their younger sisters, perhaps, and they’re thinking, "well I don’t want my daughter doing that." But think about the girls who do these jobs, who don’t have a dad, who don’t have a big brother, who would say "I really don’t want you doing that for a living, I don’t want you in that environment." ... [Act No. 395 is] about trying to protect people from being in environments where they’re going to be taken advantage of.'" But if there's one thing that should be obvious in the 21st century, it's that adult women don't want to be "protected" from their own choices by legislators with their own agendas. One legislator who did seem to "get it" was Rep. Julie Stokes, who stated during the debate over Act 395, "Looking out over this body [the House of Representatives], I’ve never been more repulsed to be part of it. I can’t even believe the behavior in here. I think we need to call an end to this. I hear derogatory comments about women in this place regularly, I hear and I see women get treated differently than men .... That was utterly disrespectful and disgusting." The complaint goes on to give personal details about each plaintiff, noting that one "began dancing at age eighteen"; that prior to her work as an erotic dancer, she "helped care for her disabled mother," working "multiple retail jobs that required her to work between 90-120 hours per week to meet her financial obligations." However, as an erotic dancer in New Orleans, she "sets her own work schedule," "highly values the scheduling control her vocation allows her, and she enjoys expressing herself through dancing" and "is able to earn enough money to meet her financial obligations, and put a portion of her income into a[n] ... Individual Retirement Account," which she was unable to do prior to working as a dancer. The other two plaintiffs have similar stories. One of the plaintiffs' primary arguments in the case is that the age restriction on dancers runs afoul of the First Amendment's guarantee of freedom of expression, which the U.S. Supreme Court stated, in its 1991 decision in Barnes v. Glen Theatre and in 2000, in City of Erie v. Pap's AM, applies to erotic dance—not to mention Louisiana's own Constitution, which "guarantees the same liberties granted by the First Amendment, and is designed to serve the same purpose and provide at least coextensive protection." The suit also challlenges the law as being overbroad, since it would prevent 18, 19 and 20-year-olds from appearing nude in mainstream theater productions or other non-dance venues if the venue served alcohol. The plaintiffs also argue that the law violates their Fourteenth Amendment rights of due process and equal protection. "Act No. 395 denies Plaintiffs the ability to engage in protected free expression on the basis of age, and serves no compelling, substantial, or otherwise sufficient government interest permitting or justifying these constitutional violations, nor does it serve any such interests in an adequately tailored manner," the complaint says. "Moreover, Act No. 395 serves no rational basis for discriminating against Plaintiffs on the basis of their age. Although the so-called purpose of Act No. 395 is to reduce human trafficking, there is no evidence that the Act’s age restrictions will have any impact on human trafficking." Just yesterday, U.S. District Judge Carl Barbier issued his "Order and Reasons" for having issued the preliminary injunction blocking the law back in October. In his 41-page decision, the judge found that while Act 395 appears to be a "content-neutral restriction," and even though the state provided "sufficient evidence" that dancers under 21 years of age are at greater risk of falling prey to pimps and the like if they dance nude, the statute was nonetheless overbroad, in that it could apply to mainstream theatrical or dance productions in venues where the performers would be in no danger from outsiders. "[T]he overbreadth doctrine of the First Amendment permits a facial challenge when 'a substantial number of [a statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep'," the judge opined. "Plaintiffs have demonstrated a likelihood of success on their overbreadth claim because there is little doubt that Act No. 395 sweeps up a fair amount of constitutionally protected speech. Although overbreadth protections are more limited for conduct than speech, Act No. 395 still violates the First Amendment because it proscribes nudity for women younger than twenty-one in more settings than those where the risk of human trafficking is present. Act No. 395 could result in eighteen to twenty year-olds being precluded from participating in theater or similar artistic productions if such participation entails nudity." The judge similarly found that the prohibition against exposing "breasts and buttocks" appeared to be unconstitutionally vague, and that the plaintiffs' rights would be "irreparably harmed" by enforcement of the statute. What will happen next is unclear, as the state may decide to amend the statute to cure its problems, or it may proceed to trial. If it adopts the latter strategy, its first step is likely to appeal Judge Barbier's decision to the Fifth Circuit Court of Appeals which, while generally conservative, nonetheless struck down Texas' ban on sex toy sales in Reliable Consultants v. Earle, and so may be disposed to look favorably on the dancers' arguments.

 
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