Public Sex: Protected Speech

The Oregon Supreme Court ruled today that a public display of sex was constitutionally-protected speech.  OPB summarizes the case:

This case began in 1998 when Roseburg police arrested strip club owner Charles Caincanelli. Two dancers in his establishment were performing sex acts in a show. The defendant argued the performance was expression, protected by the state constitution.  Two lower courts disagreed, saying public sex acts fall into a historical exception to free speech protections....

In an opinion by Justice Michael Gillette, the court said the framers of Oregon's 1857 constitution protected speech on any subject whatever .

Oregon has among the most liberal speech protections in the US.  One of the issues raised by the case was whether the ruling would promote prostitution--an issue raised by dissenting justice Paul DeMuniz Michael Gillette, who wrote

that the crime of promoting prostitution is not protected speech.  That's what Ciancanelli was doing, Gillette wrote, by profiting from the sexual conduct of his dancers. But that raises the question of where a constitutionally protected sex show ends and where the crime of promoting prostitution begins.

That argument was apparently not persuasive to the other justices--Gillette DeMuniz was a lone dissenter in a 5-1 decision. However, the Court did say that public sex acts may violate other laws--but not the speech protections in the Constitution. In a separate ruling, the Court ruled that a Nyssa law requiring a four-foot buffer between dancers and patrons was unconstitutional.   

Comments

  • Wilson (unverified)
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    1. De Muniz was the lone dissenter; Gillette wrote the opinion.

    2. It is a very well reasoned decision with cogent analysis of the history of free speech and expression.

    3. The companion case should be read as well (striking down a four foot rule and nude dance clubs).

    and

    1. In the words of Frank Zappa:

    I’m only interested in two things, and that’s Titties and beer You know what I mean? What? Titties and beer Titties and beer Titties and beer Titties and beer Titties and beer Titties and beer Titties and beer! Titties and beer!

  • (Show?)

    What we're talking about here goes far beyond "t*tties," as you put it. This "dancing" often resembles a full gynecological exam. They ought to give the customers those little flashlights that the doctors use.

    Placing one's genitalia within inches of someone else's face, for money, is an odd way of "expressing oneself." Particularly when the person making the "statement" is an 18-year-old girl with a drug problem and the recipient of the "message" went to school with her grandfather. Oregon -- things look different here, indeed!

  • jim karlock (unverified)
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    Why do youall care about how others have sex?

    Do you care aboout how gays have sex?

    Why do you care about dancers?

    Do you want Geroge Bush to dictate sex to you?

    Does the concept of freedom have meaning to you?

    Thanks JK

  • oregone (unverified)
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    My fiance and I get into this argument all the time, sometimes quite heatedly. I go to strip clubs about twice a year, usually the old-schooly ones like Magic Gardens or Mary's, but sometimes the glitzier ones like Cocktails and Dreams or the Dolphin. I've always contended that stripping is just another career choice for women, and that it would be anti-feminist to deny them this opportunity. My fiance finds it degrading, both to the women on stage and the slobbery frat boys that would choose to pay for a close-up lesson of the female anatomy. I remind her that oregon's economy is a fragile one, and that we need strip clubs to provide jobs and revenue. She reminds me that i'm now engaged and should probably take a different position if i know what's good for me.
    Lately I've been trying to change the subject if it looks like our conversation is heading toward the adult entertainment industry. At least now i have the oregon supreme court to back me up.

  • Tom Civiletti (unverified)
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    I have a difficult time finding a compelling reason for government to prohibit consensual sexual behavior, whether or not money is involved. Regulation, such as requiring that condoms be available, would be useful if commercialized sex were legal.

    Is sex work degrading? Maybe, but then so have been many of the legitimate jobs I have worked.

    That said, there certainly is a strong current of degradation in sexual attitudes, particularly those of men. It doesn't take long to confirm this on the internet. We have a lot of work to do in overcoming the Madonna-whore mindset and the notion that mistreating others is sexy. Those who object to government intrusion into sexual behavior shouldn't pretend that everything is hunky dory between the sheets.

  • (Show?)

    Come for the fishing, stay for the strip clubs. Indeed.

    I've talked to plenty of strippers, who've run the gamut from strung-out and bruised to putting herself through college. For some reason, strippers really like to talk to the women in the audience. Anyway. It's a well-paying job with a constant market that ain't gonna be outsourced (unions, go organize these ladies) and who are we to judge between those that do it because they want to and those that do it because they have to.

    I don't think the stripping itself is degrading so much as the attitude that many men bring to it - it's the reaction that makes it degrading, not the act itself (as with all things sexual).

    So, if it happens on stage or on film and people want to see it, seems to me that it qualifies as "art" or expression and therefore 1st Amendment protection. Stripping has many of the same elements as dance, sex maybe not so much, but I've also seen some "time-based art" that was awful enough to make me avert my eyes. The point is that you, and not the government, get to decide what you see on stage. Real live f*cking sex shows never look as neat as you think they will, but if you're into that then watch and tip well; if you're not into that, then don't go see one.

  • Bill Holmer (unverified)
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    What I don't understand is how our esteemed Supreme Court can find that prohibitions against prostitution are constitutional, but prohibitions against having sex on stage for money are not. I predict a constitutional amendment will come out of this one.

  • Sid (unverified)
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    Prostitution should be legalized and unionized. It doesn't seem to be doing major damage to the Dutch.

    This is where my libertarian streak shines through. I agree with the court decision, and we need to get over it. This is something that my husband and I never have argued about.

  • Tom Civiletti (unverified)
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    The downside of this decision lies in the likelihood of another ballot initiative that will bring out social conservatives to vote for Republicans.

  • A Question of Sid (unverified)
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    A question to Sid:

    If prostitution was legal, which you say your libertarian side supports, it would have to be regulated and taxed, thereby expanding government and increasing income tax revenue at the same time.

    What does your libertarian side think of that?

  • (Show?)

    I've always thought along the same lines as Sid--

    • legalize prostitution

    • regulate it, including regular health exams, condoms, etc.

    • place some kind of "sin tax" on it like you do with cigs and beer

    Now the prostitutes pay income tax. Those who are running the show (pimps, madames, whatever) now have to pay business taxes. And you end up with less people getting diseases from the prostitutes.

    I've always thought it was funny that if you pay someone to have sex in your car, it's illegal. Pay someone to have sex with you in your car while filming it, it's a porn movie and it's legal.

    I've always wondered why they don't come up with a way to combine prostitution and porn movies to get around the illegalities of prostitution.

    Sure, it's a terrible thing when a married man goes out and haves sex with a prostitute. My husband would get a thorough beating and then divorce papers if I ever caught him doing that. However, making it illegal isn't going to stop them. They can always find a mistress.

    It's another one of those victimless crimes that we really need to just legalize, regulate, and tax. We could be spending so much more time and effort catching worse criminals than "Johns."

  • jim karlock (unverified)
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    BK asked: If prostitution was legal, which you say your libertarian side supports, it would have to be regulated and taxed, thereby expanding government and increasing income tax revenue at the same time.

    What does your libertarian side think of that? JK: This Libertarian thinks it is a good trade off - accepting a lesser evil in place of a greater one. It is pogress in the direction of more freedom.

    This is also one Liberetarian who faces the reality that some regulation is necessary. As are some taxes. I just differ as to the proper amounts.

    Thanks JK

  • (Show?)

    The question I would ask those who think sex-for-sale should be legalized: would you have sex for money?

    Not me is what I would imagine the response. That's for others who are less worthy.

    We call politicians "whores" who take money to do their clients bidding. Maybe we should unionize them and pass out free condoms to protect the rest of us.

    Personally I don't care what people do between the sheets, or with who. But selling the sex-trade as just another career choice is sad. Amsterdam's red-light district is sad. Paying women --or men-- to pretend they like you is sad.

  • (Show?)

    The question I would ask those who think sex-for-sale should be legalized: would you have sex for money?

    I'm like Jerry Garcia on this one. I've been trying to sell out for years, but..........No takers.

    Paying women --or men-- to pretend they like you is sad.

    Yeah, but that's the core value of politics.

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    Actually, no, I wouldn't have sex for money.

    Why? I'm very happily married, and cheating on my husband is not something I would do.

    If something happened to him, I still wouldn't be interested in having sex for money.

    I'm not interested in that whole sex with strangers thing. Call me a bit old fashioned, but sex outside of a serious, committed relationship is out for me.

    I know Republicans would have a hard time believing it, but there are plenty of us liberals whose only serious boyfriend/girlfriend is also the person we married.

    But not everyone is like me. There are plenty of people out there who enjoy having sex with strangers or prostitutes. Look at how many one night stands there are out there. It's just not my thing.

  • Sid (unverified)
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    In response to whomever asked me:

    If prostitution was legal, which you say your libertarian side supports, it would have to be regulated and taxed, thereby expanding government and increasing income tax revenue at the same time.

    What does your libertarian side think of that?

    If you had read my comment more closely you would have noticed that I wrote "social libertarianism" which is different than the libertarianism with a big L. In other words, I'm not a Libertarian, but a social libertarian.

    And, yes, I think regulating and taxing prostitution is a great idea. And I think it would behoove prostitutes enormously to work in a legitimate business, particularly if they were unionized.

  • (Show?)

    And, yes, I think regulating and taxing prostitution is a great idea. And I think it would behoove prostitutes enormously to work in a legitimate business, particularly if they were unionized.

    If "they" were unionized...

    Sid, whatcha gonna charge --YOU-- for your having sex with people you don't know? What do you figure you're worth? Union rates, of course...

  • Jeff Bull (unverified)
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    Y'all beat me to the punch on this by a number of days....I was slow off the mark for this one, only getting to this today, much like the Portland Tribune.

    My thoughts can be found through the link (they're not complicated; this was a good ruling), but I don't have much to add anyway, beyond registering some shock at how few would at least try sex for money - not as a career necessarily, but as a "try-it-on" one-off. Like someone up the list, I'm happily married and wouldn't, in that context, have sex for money, but assuming the end/supension of my happy marriage, I'm the kind of person who could be talked into it. I'd want to know what it was like if nothing else.

    I'm guessing it'd be something like a one-night stand with compensation...and how many people responding to this post have had (at least) one of those?

  • Jeff Bull (unverified)
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    Ah, what the hell. I did another one today, which dealt mainly with trying to find the counter-point to how I think about this. Even then, I didn't dig much into it. But, for those interested in a little ramble on this, here you go.

  • (Show?)

    I'm guessing it'd be something like a one-night stand with compensation

    Well...that "guess" would be wrong. A one-night stand suggests mutual attraction, at the least. When you're selling it on the street you're basically taking all comers.

    I know the "exploitation" angle is a little tired, but so too look the women in Amsterdam's red light district. Primarily women of color.

    Sorry, but this ain't a Belle de Jour fantasy. It's not a good life (and then even Belle ran into trouble). It seems to me a better position for progressives to support rests on mutual respect between partners and, corny I know, "love."

    The reason this segues so easily from "freedom of speech" and "live sex shows" to prostitution is they are inseparable. Again, I care less what people do, or if people want to sell their charms...but lets not kid ourselves that this is a "career" worth emulating, or promoting.

  • Anne Dufay (unverified)
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    Frank and I have been debating this subject off-line for a few days. In the end I've decided I agree with him. The women in Amsterdam are, its true (at least they were a few years ago, when last Frank and I were there), largely third-world, and no one walking those streets could really, straight-faced, called them NOT exploited. Despite their protections under an open, legal system.

    But more fundamentally, and back to the age-old argument that the oldest profession cannot be stopped: I'm moved to protest, not just because of the deadly fatalism of the notion, but because the "oldest profession" never had an age, or gender, restriction. I am a mom. Of boys. And, from the earliest times “the oldest profession” also included children. Of both sexes.

    This bitter sad story is as “old” as it gets.

    Are we willing to say that because we've never been able to stop it, we will therefor acquiesce to endless exploitation of the week, no matter who or how young or old, to provide sex to people whose bottom line is, they want someone they don't have to care about, or know their name? Someone who can never report them for giving them AIDS?

    You like prostitution? You find the exploitation, even slavery, of women, uh, ok? Well then, you gotta deal with the sex-trade in children, too. It’s all part of the same dirty package.

    Anne

  • (Show?)

    I agree with you on this one, Anne. I would parse it from a policy perspective, though. The Supreme Court ruling here doesn't say you can't regulate strip clubs--just that you can't argue it's not protected under the speech provision of the Oregon Constitution. So I'd say it would be well to think about reasonable regulations to protect the safety of the workers. I would hate to see someone try to amend the constitution's protection for expression as a way of preventing prostitution.

  • j boone (unverified)
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    ok. i'm in texas, but this ruling has effect on us all. let me humbly remind the audience that the 2 participants were paid to be at work. thus ultimately they were paid to have sex. therefore, it is "ok" if your boss says...."go have sex on stage with your coworker" . regardless of the fact whether one is pro or anti legalized prositution, it is still not legal (exceptions exsist i acknowledge). and thus not legal. the judge was seriously in error.

    and i say to each and every man, only if you condone your mother and sister. no, your daughter. up there on stage committing a sex act should you say that this is "ok".

    so you would pay to see your daughter in the midst of a sex act? yes? morality is fiction and fantasy. life has indeed gone to the dogs.

  • tom civiletti (unverified)
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    If prostitution must not be legal because the underaged are sometimes prostituted, must all labor be outlawed because child labor is endemic in many places?

    To the contrary, it is only the regulation of a legalized activity that allows protection of those engaged in the activity.

    It is not a matter, as Anne asks, of whether one likes prostitution. It is a matter of dealing rationally with an activity which has survived thousands of years of attempted prohibition.

  • Clayton E. Cramer (unverified)
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    If you want a more detailed examination of what's wrong with this decision, look here.

  • Are You Kidding Me Sid (unverified)
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    Sid,

    <h2>I just went up an re-read your post again, very carfully this time. You say your libertarian streak, not social libertarian side. Really, maybe you should read your posts more carefully before hitting the post button, and especially before you start spouting off about the specifics of your post, which have obviously gone a little foggy to you.</h2>
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