Moral Sex

City Hall Puritans crack down on sex businesses. Expect the courts to decide if the new laws are constitutional.

--Mayor Skip Rimsza, at the start of the December 9 city council meeting

Phoenix attorney Dick Hertzberg has represented sex-business owners in court for 35 years. He's no zealot, just an advocate who says he wouldn't want a strip joint in his own neighborhood.

During the Eighties, he had almost more work than he could handle, thanks to a high-profile effort by then-Maricopa County attorney Tom Collins to crush Valley sex businesses--especially "mom and pop" video stores that rented porn.

Collins first won election in 1980, due in part to the financial backing of megadeveloper Charles Keating's powerful Citizens for Decency Through Law. Keating's organization lobbied politicians and contributed money to their campaigns, bought newspaper ads, and lent attorneys to prosecutors in preparation for obscenity trials.

Its influence waned after Keating's own illegal business practices led to his felony convictions and a prison term. Many conservative organizations have arisen from CDL's ashes, including the National Family Legal Foundation.

Formed in 1990 and funded privately, the nonprofit aims to provide "direct legal assistance and educational resources to those concerned about health and crime issues affecting children and their neighborhoods, particularly the sexual violence empirically proven to accompany sexual oriented businesses and illegal (including child) pornography."

NFLF executive director and general counsel Scott Bergthold says officials from more than 400 communities across the United States have contacted his foundation with "requests for assistance" since he assumed the helm last year.

From that list, Bergthold says, NFLF has worked directly with 238 municipalities, 43 of which have enacted laws similar to those recently passed in Phoenix. He adds that five of those jurisdictions currently are enmeshed in court battles, including Cumberland, Wisconsin, population 2,163.

"It's just the nicest little town, a true Norman Rockwell, Americana setting," Bergthold says. "At Christmastime, they have real greenery on the light poles, and Christmas lights on all the townspeople's beautiful Victorian homes. And then . . . there's this big sign that says, 'Nude Girls Here.' It's a clear and present threat to their way of life."

The problem arose, Bergthold says, because Cumberland is near a state highway. Last year, an interloper opened an all-nude strip club on Cumberland's outskirts.

"The city council began to receive reports of women sticking pickles in their body parts," he says. "Then they called us."

NFLF helped Cumberland officials devise a law that declared the new club a public nuisance, and shut it down. Its proprietor appealed. Last November 5, a federal district court declared Cumberland's ordinance unconstitutional.

Bergthold returned recently from the northern Wisconsin town, where he convinced Cumberland officials to appeal the ruling to the Seventh Circuit Court of Appeals, a step below the U.S. Supreme Court.

"I went out there to encourage them with the news that they will likely win on appeal," he says, adding that he's offered to personally represent the town on appeal, free of charge.

Of NFLF's involvement in Phoenix's new sex laws, Bergthold says the City Attorney's Office contacted him for assistance in researching and writing the ordinance that banned swingers' clubs.

Like Len Munsil, his predecessor at NFLF, Bergthold is articulate, well-schooled, and a self-avowed conservative Christian. Both say they've never been inside a sex business.

"I don't need to get shot to know that a bullet hurts, and I don't need to go in one of these places to know they're harmful to the community," says Munsil, who now is president of another advocacy group, the Center for Arizona Policy.

Although he's never set foot in a sexually oriented establishment, Munsil has advice for anyone who would venture into one: "Wear heavy clothes, and an old pair of shoes you're willing to discard, as soon as you leave."

Bergthold and Munsil express confidence that their legal strategies are sound. But law books are replete with examples of courts overturning sex-related ordinances such as Cumberland's--and Phoenix's.

The U.S. Supreme Court has made it clear that sex businesses are subject to zoning laws, just like other businesses. But a city must take pains not to trample on the constitutional rights of sex businesses and their employees.

It's a delicate balancing act.
Elected officials often go too far when crafting sex-related ordinances. On October 21, for example, an appellate court overturned Erie, Pennsylvania's 1994 ordinance against nude dancing in that city.

The court said an "unmentioned purpose" of the Erie law had been designed to suppress free expression: "The . . . act of dancing nude, with its attendant erotic message, is an expressive act entitled to First Amendment protection."

In its decision, the Pennsylvania court referred to the pivotal U.S. Supreme Court case of Barnes v. Glen Theatre.

Though hopelessly fragmented, a 5-4 Supreme Court majority in 1991 upheld an Indiana law that banned totally nude dancing in bars and other adult establishments. All but one justice, however, agreed that stripping is "expressive conduct" that falls under the First Amendment.

Voting with the majority, Justice David Souter said governments have a legitimate interest in combatting secondary effects of adult entertainment. But the court in the recent Erie case relied on Justice Byron "Whizzer" White's minority opinion in Barnes:

"We find it highly circuitous to prevent rape, prostitution and other sex crimes by requiring dancers in a liquor establishment to wear pasties and a G-string before appearing on stage. We believe that imposing criminal and civil sanctions on those who commit sex crimes such as prostitution and rape would be a far narrower way of furthering that governmental interest."

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