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.
In Providence, Rhode Island, you don’t have to imagine it, because it happened to a strip club called the Foxy Lady. On Dec. 19, the Providence Board of Licenses voted to permanently shut down the adult entertainment venue, which has been in operation for decades, after police arrested three employees for allegedly soliciting sex from undercover police officers earlier in the month. By doing so, the board threw more than 200 people out of work less than a week before Christmas.
Within days, the state Department of Business Regulation quickly restored the club’s liquor license, but the Foxy Lady’s owners were required by law to petition the state Supreme Court to regain its entertainment license. On Monday, the ACLU of Rhode Island submitted to that court arguing that it should grant a stay of the board’s revocation of the Foxy Lady’s license on the grounds that the board violated the due process and First Amendment rights of the establishment. Yesterday, the state Supreme Court , allowing the club to reopen for now, but the threat of future closure remains.
To understand the incredible severity of the punishment, a few things are worth noting. The Foxy Lady has been around for 38 years, and this is the first time it was hauled before the board for any violation. The board has a long-standing policy of progressive discipline for license violations, something it completely ignored in this case. In issuing the draconian penalty of permanent license revocation to the Foxy Lady, it concluded that having three women supposedly solicit sex from men who were patronizing a strip club constituted “a danger to the health, welfare and quality of life of the public” and posed a “severe” “harm to the community.”
But compare that to some of the board’s other recent punishments meted out against license violators: a four-day suspension to a club where a double stabbing occurred, a 30-day suspension to a club found not to have in place required security plans when a patron fired a gun inside the establishment, and a 90-day reduction in hours to a club where a shooting took place right outside and the manager was found to have ordered the deletion of that night’s surveillance footage.
The unfairness is compounded when one learns that the sting operation at the club was supposedly initiated because a female employee had, a few weeks earlier, been the victim of a sexual assault by a customer, and the club sought the police department’s help. Yet thanks to the police and the Board of Licenses, it’s women who have borne the brunt of the punishment. Three of them face criminal charges and have had their names and photos splashed across the media for a victimless crime, and dozens more were put out of work for weeks and without a paycheck — all under the guise of “protecting” women.
The Foxy Lady provides entertainment protected by the First Amendment. The Cirque de Soleil it may not be, but before the government should be able to completely shutter an establishment engaged in free speech activity, a much stronger showing than the flimsy grounds presented here must be demanded.
In addition to ensuring that the Board of Licenses acts with some consistency in penalizing violators, it is essential that clear, objective, and narrow standards are in place before any government agency should be able to decide whether an establishment engaged in First Amendment activity can be punished, much less completely shut down. As our brief noted:
“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 precedent created by the board’s decision is unsettling. Just as unsettling is the board’s hypocrisy in being more concerned about the possibility of solicitation of consensual sex taking place in licensed establishments than the occurrence of actual violence. This puritanical obsession — the notion that sex deserves more condemnation than violence — may be a constant in American culture, but it deserves to be challenged when a government agency engages in it and tramples upon the First Amendment.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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Free Speech
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Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
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Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.