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In other words, fellatio, cunnilingus and fornication fall behind the shield of free speech in the context of a swingers' club, because they communicate a clear social, moral and political message, controversial as it may be. Or so goes the argument.
Hays seemed to enjoy himself in several stormy depositions preceding the March 4 hearing, as he prodded club owners to explain precisely what message sex acts in their businesses deliver.
In one interrogation, he asked Club Discretions owner John "Dutch" Van Brunschot, "Have you ever seen two people have sexual intercourse on the club premises while the club was open to the public?"
"Yes," Van Brunschot replied.
"Do you recall if you heard any message coming from them at the time?"
"You mean like moaning?"
"That," Hays said. "Anything."
"Sure," Van Brunschot continued. "Lots of moaning."
Later in the deposition, Hays gave Dutch another chance.
"Have you and your wife ever had sexual relations at another social club?"
"Probably did. Sure."
"Can you tell me what message you were sending at that time, if any?"
"That I enjoy doing it."
DePrima interjected and threw his client a life line. "Were you letting her know you love her?"
"Excuse me, counsel," Hays retorted. "I'm not taking your deposition. I'm taking his. If you want to be a witness, open up a club."
Still later, Hays posed the message question one final time.
"This message stuff, I mean, I guess--you know, I only went to the seventh grade, you know," a flustered Van Brunschot replied. "I'm not trying to send messages. You know, who am I sending a message to? Am I sending a message to you? That's the way I express myself. I do what I like."
In a separate deposition, Willian "Billie" Marcus, co-owner of the west Phoenix swingers' club Guys & Dolls, was more eloquent in describing the message of swinging.
"The lifestyle is a very open-minded philosophy in which couples who are at the core of it espouse an open and trusting attitude toward physical expression not only with their partner, but with other people, usually with their partner present. It also requires a hundred percent from both partners in terms of commitment and trust, and that is why you don't have the bulk of the population espousing it, because they just don't have it in them to do that."
Hays then played sexual inquisitor, questioning Marcus on specific acts performed at Guys & Dolls.
"Have acts of oral sex, the man performing on the woman, ever occurred on your premises?"
"Yes," Marcus answered. "I've seen people express themselves that way."
"And have acts of oral sex, the woman performing on the man, occurred on your premises?"
"Yes, I've seen people express themselves that way."
"And have you ever seen any acts of anal sex on the business premises?"
"No, I have not seen people express themselves that way."
Hays seemed to belittle her answers.
"Do you think you're making some kind of legal point by characterizing all these things I ask you about as expressive?" Hays asked.
"You're not in any way attempting to justify the operation of your business by hiding behind the First Amendment to the United States Constitution; is that true?"
"I'm not hiding behind anything. . . . I believe it's in the--what was that thing, that deal that lists all the different amendments? This whole case is about that."
"That deal" would be the U.S. Constitution, and the lawsuit against Phoenix will decide whether it guarantees the right to have sex with someone else's spouse, or your own, for that matter, in a licensed club setting.
There is no clear case precedent on whether a city or state can outlaw swingers' clubs, because no government had done so before Phoenix.
Club lawyers Kaup and DePrima have on their side a famous 1974 U.S. Supreme Court decision (Spence v. United States) which holds that nonverbal conduct is expressive and entitled to First Amendment protection if 1) it is intended to convey a particular message, and 2) there is a substantial likelihood that the message will be understood by those receiving it. (The case was brought by a defendant who was charged with a crime for taping a black peace symbol on both sides of an American flag to protest the Vietnam War and Kent State massacre.)
Before city attorney Hays penned the final draft of the sex-club law, he contacted lawyers at the Scottsdale-based National Family Legal Foundation and requested their help in finding court decisions that can be cited in support of prohibition of such clubs.
NFLF lawyers and law clerks put together a legal brief that centered on a 1986 Supreme Court decision (Arcara v. Cloud Books Inc.) concerning an adult bookstore that was shut down after police received reports of prostitution occurring on the premises, allegedly with the knowledge of management. The owners of the bookstore sued, arguing the closure violated their First Amendment right to sell books. The court was not persuaded, and ruled against them.
The difference between Phoenix swingers' clubs and the bookstore in Arcara, though, is that prostitution is illegal, bookstore or no bookstore, whereas swingers can legally swap partners to the limits of their desire in a private residence.