Public comment supporting constitutional regulation of adult establishments in the Town of Thompson

Public comment supporting constitutional regulation of
adult establishments in the Town of Thompson

March 6, 1997

Adult Establishment Committee
c/o Ms. Paula Kay-Drapkin, Chair
The Town of Thompson
4052 Route 42
Monticello, New York 12701

Re: Public Comment concerning regulation of adult establishments generally, and
Local Law No. 9 of 1996 of the Town of Thompson

To whom it may concern:

The following is respectfully submitted as Public Comment, as invited by the town Adult Establishment Committee. A draft of this letter was previously posted on the Internet, on the SullCounty e-mail list, in a discussion of this topic, to elicit further comments. References enumerated on the attachment are incorporated into this letter as recommended reading.

Jack Hardy is a well-known poet, folk-singer and resident of Callicoon. Several years ago, while having dinner with the Hardy family, Jack gave my wife and me a small pin, brown with an orange typeface, bearing the words, "Support your local pornographer." We have this button stuck on the wall in my office at home, as a reminder of where we live.

The best answer to patently offensive speech, it has wisely been written, is more speech, not censorship, which is what Local Law 9 amounts to.

Pornography is said to be a barometer of speech freedom, much like a canary in a mine shaft. Dictators first censor pornographers, then go after those who criticize government. When the door to censorship opens part-way, governments are naturally inclined to push further and eventually come charging through.

Recent efforts to, even temporarily, ban new businesses involving sale of media, literature or artistic performances featuring nude or seminude humans, are a dangerous intrusion by local government into the realm of speech. Certainly, such establishments can (and should) be subject to fair, prudent zoning and master planning, like all other businesses and residents in town.

Perceptions of pornography vary widely. Some feminists experience it as a form of patriarchal silencing. Andrea Dworkin, Adrienne Rich, Laura Lederer, and other social scientists have written persuasively from of the view that pornography is oppressive to women. Other feminists, like Annie Sprinkle, for example, reply seriously and equally persuasively, that it is or can be a liberating force for social change. If public drunkenness or violence is associated with some "adult" locations, these behaviors should be responded to by law-enforcement. But moral conclusions should be left to the individual, not the Town Board.

From my own experience and point of view, both as a person and as a professional, what concerns me most about this question is what appears to be a tangible threat to a critical freedom by my own local government. Freedom of expression is a basic human right.

In some instances, government is permitted to regulate speech in the senses of defining a reasonable time, place and manner for such speech to occur. It is reasonable that adult establishments, in general, be regulated as to place so as not to diminish the property rights of others, provided that Town officials are as helpful and solicitous in administering such permits to adult establishments as they are in the case of any other commercial enterprise coming to town -- Wal-Mart, let's say.

The Town of Thompson is not Times Square, nor will any portion of it ever be comparable thereto. Yet if we fail to speak up in defense of unpopular speech, any of us may fall victim next. "Adult establishments" have always been with us, in one form or another, though we see relatively few in this area. Those who don't like them, don't patronize them. If you do, and you are of full age and capacity, enjoy yourself and don't harm anyone.

Government censorship is real. It occurs more often than many will admit. It is far more dangerous to persons and property than naked people, or even sex shows, whether on paper, film, or in the flesh. If there were more openness in our culture in its flow of information, concerning everything from government to sexuality, it is my opinion that society would be healthier.

To be clear, the issue being considered and commented upon is adult depictions and expressions. When children or the incapacitated are involved in sexual acts, or when people are enslaved to act against their free will and accord, a bright line is crossed. There is no question that child pornography, or any form of child abuse, is wrong and unlawful. (See New York vs. Ferber, 458 US 747 [1982].) Slavery, too, demarks a bright-line -- one of free will and of the capacity of adults to make informed choices. But what "compelling state interest" justifies a total ban on new adult establishments, regardless of for how long that ban remains in effect?

Local Law No. 9 of 1996 is over broad, arbitrary and unreasonable. (See Young vs. American Mini Theatres, Inc., 427 U.S. 50, 74 75 [1976], holding that an ordinance restricting the location of [but not banning] adult movie theaters advanced public welfare). Rather than restricting locations, Thompson's present ordinance creates a Town-wide full moratorium on a class of businesses based on speech content (i.e., clothing, performance style, etc.) Any of the local video stores which carry R-rated movies (and most also rent X-rated), it has been pointed out, could be found in violation of the existing ordinance. This appears to suggest that local government does not want new stores like The Boob Tube or Action Video, or theaters or book shops, coming to town. If this is untrue, then the law is badly written. If a "substantial portion" of any new business consists of an "adult bookstore, adult eating or drinking establishment, [or] adult theater," it is currently forbidden to open in Thompson. But what is substantial? Five percent? Twenty percent? Fifty percent? Legal advice received is that such ambiguity, combined with the total ban entailed with the moratorium, could cause the existing local law to be overturned in court. Knowing this, responsible legislators would repeal such a law at once. Not to do so may prove grossly wasteful, and bears the distinct appearance of being politically motivated and self-serving as the 1997 election season approaches.

A copy of an ordinance adopted by the Town of Rye, Westchester County, in 1994 is attached for consideration. In contrast to our Local Law No. 9, Rye's ordinance does not ban adult establishments -- even for a period -- but does appear to regulate adult establishments to "a reasonable time place and manner," and goes no further.

I urge this committee to recommend immediate rescission of Thompson's poorly conceived Local Law No. 9, before more public or private resources are wasted on it. Regulations of exterior signage, lighting, frontage, concentration of establishments, public health and the like, are the proper domains of zoning codes and planning boards. Banning a certain type of lawfully permissible expression is not, any more than banning unpopular religions by force of law would be permissible under the establishment clause of our First Amendment.

Zoning must not become an excuse for government censorship. Broad-brushed legislative strokes, running counter to the constitutions of both the U.S. and State of New York, waste valuable resources and time, both in government and the private sector, and smacks of pandering to public opinion in order to curry votes rather than sound policy-making.

Thank you.

Respectfully submitted,
Thomas S. Rue

cc: Hon. Anthony Cellini, Supervisor
Attachments

References

Califia, Pat (1986). The obscene, disgusting, and vile Meese Commission Report (article).

The Constitution, with analysis and interpretation: Annotations of cases decided by the Supreme Court of the United States to June 29, 1992. ("This document is sponsored by the United States Senate on the United States Government Printing Office web site.") The First Amendment: . Main site, table of contents.

Dworkin, Andrea (1997). The Andrea Dworkin on-line library catalog (selected articles).

Morton, Roger (1997). Studies on the effects of pornography: A review of psychological literature (links and off-line journal references).

Rue, Thomas S. (1983). [a] Pornography and erotica: A contrast, in partial fulfilment of Independent Study in Psychology; and [b] Invisible victims: Effects of pornography on women, in partial fulfilment of Psychology of Women, Trenton State College, Ewing, New Jersey.

Rue, Thomas S. (1995). "Nude women still dance at Passions" (news article), The River Reporter, Narrowsburg, New York.

Frederick Schauer (1995 ). "The American approach to the law of obscenity" in Duncan, Jane, Between speech and silence: Hate speech, pornography and the new South Africa, published by Freedom of Expression Institute, with the Institute for Democracy in South Africa.

Town of Rye, New York (1994). Zoning ordinance amendment, §202.12 Adult Establishments (copy attached).

Santiago, Simon (1993). Zoning & religion: Will the Religious Freedom Restoration Act shift the line toward liberty?

Sprinkle, Annie (1996). Annie Sprinkle's home page at the Gates of Heck (selected writings of Annie Sprinkle).

Strossen, Nadine (1995). Defending pornography: Free speech and the fight for women's rights.