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A federal appeals court in Chicago struck down portions of a Cumberland, Wis., ordinance prohibiting exotic dancing but upheld as constitutional a section of the same law preventing dancers from being totally nude. The small northwest Wisconsin town near the Minnesota border passed the ordinance in 1998 in an effort to shut down the Island Bar, a club featuring nude exotic dancers. The club lost its liquor license in 1994 but continued to feature the dancers. The 7th U.S. Circuit Court of Appeals found in a decision released Sept. 26 that sections of the ordinance violated the First Amendment guarantees to expression in that it banned “sexually explicit” movements and was not content-neutral. “The Ordinance applies only to certain establishments characterized by their presentation of live performances with particular erotic content, and it is the presentation of expressive content that determines whether particular establishments are within or without the regulation,” the opinion read. Joseph Schultz, et al. v. City of Cumberland, No. 98-4126. However, the court found that Section VIII (A) of the ordinance, barring full nudity, was valid in that no expression was being limited by requiring dancers to wear, at a minimum, pasties and G-strings. Island Bar owner Joseph Schultz and Tonya Norwood, one of the dancers at the club, filed the lawsuit against the village in 1998. A ruling from a U.S. District Court judge that portions of the ordinance were unconstitutional kept the village from enforcing it. The village appealed that decision. Cumberland argued that the ordinance was lawful because, like in ordinances against nude dancing found to be constitutional by the U.S. Supreme Court in Erie v. Pap’s A.M., 120 S. Ct. 1382 and Barnes v. Glen Theatre Inc., 501 U.S. 560, the village’s intent was to combat secondary effects of adult entertainment, such as prostitution and assaults. But in an opinion written by Judge Michael S. Kanne, the appeals court pointed out that a significant difference between the legal ordinances and the one passed in Cumberland is that the Cumberland law bans nude dancing in reference to certain protected expressive content, while the ones in the Erie and Barnes decisions barred all public nudity. Judge Terence T. Evans and Judge John L. Coffey joined in the opinion. Schultz and Norwood also challenged Section VIII (A) as being overbroad, as it could apply to third parties seeking to engage in protected speech. The court, however, disagreed with that argument and said the ordinance’s language was narrowly applied enough to be constitutional. While that section of the ordinance prohibits nude dancing at an adult establishment that “regularly features” persons in a nude or semi-nude state, there is no strict definition of the length of time that a venue must feature such content before it qualifies as a sexually oriented business. That leaves open the opportunity for a theater to host a production of the play “Hair,” which features nudity, but not have the theater labeled a sexually oriented business, the court reasoned. The court also upheld certain licensing requirements for adult business owners such as name, age, address, and type of license applied for, because they allow the city to regulate time, place and manner of adult entertainment without censoring expression. However, the court did strike down other sections of the licensing requirements that state a license would not be issued to a person convicted of various sex-related offenses. The judges found that the ineligibility provisions disentitle a class of speakers from a category of expression. “Indeed, Cumberland neither conducted nor cited any study establishing its basic premise that ownership or performance by those convicted of specified criminal activity or misconduct is more likely to lead to secondary effects than ownership or performance by anyone else,” the opinion said. Randall D.B. Tigue, of Minneapolis, represented Schultz and Norwood before the court. He could not be reached for comment. Cumberland was represented by Richard M. Burnham, of LaFollete & Sinykin in Madison, Wis., who also could not be reached for comment.

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