ACLU Files Brief in Support of Foxy Lady Keeping Entertainment License Pending Court Review

Posted: Dec, 31, 2018

The ACLU of Rhode Island today filed a “friend of the court” brief in the R.I. Supreme Court, arguing that the Providence Board of Licenses’ revocation of the Foxy Lady’s entertainment license earlier this month, and the failure to issue a stay of the decision pending full judicial review, violate the club’s First Amendment rights. All of the club’s licenses to operate were revoked earlier this month by the Board after undercover officers arrested three female employees for allegedly soliciting for prostitution.

Last week, the state Department of Business Regulation overturned the Board’s revocation of the club’s liquor license, but the only avenue of appeal regarding its entertainment license is through a discretionary petition to the R.I. Supreme Court. This, the ACLU’s court brief says, “turns the First Amendment on its head . . . [E]stablishments like the Foxy Lady that require entertainment licenses to engage in protected First Amendment activities face more severe punishment for the same conduct . . . than businesses that do not engage in protected speech.”

Noting that exotic dancing has long been held to be a form of expression protected by the First Amendment, the brief also argues that “courts must be especially vigilant to protect exotic dancing and other types of unpopular speech precisely because they face the greatest threats of suppression.”

In calling for the Court to “immediately grant a stay of the order revoking” the club’s license, the brief argues that the First Amendment requires a stay in order to prevent  “an unconstitutional deprivation of Petitioner’s free speech pending judicial review.” The brief goes on to argue that the Board’s decision “manifestly conflicts with the requirement that ordinances that require licenses to engage in protected speech must provide administrative bodies narrow, objective, and definite standards …  and must not provide unbridled discretion.”

The brief explains:
“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 Board’s history of providing less severe sanctions for more serious crimes at other licensed establishments, including felony acts of violence, illustrates the unconstitutionally broad power to arbitrarily restrict protected speech.”

The brief adds:
“For every day that the revocation order remains in place without a stay, Petitioner has been deprived of its ability to engage in constitutionally protected speech without any judicial review. The First Amendment does not allow this result.”

A hearing on the club’s petition is scheduled to be heard by the Court on Thursday.

ACLU volunteer attorney Jared Goldstein said today:
"It's clear under the First Amendment that the Foxy Lady has a right to present adult entertainment, and that right can't be taken away arbitrarily, but the Board has claimed essentially unlimited power to suppress protected First Amendment activities for any reason it sees fit. The Constitution does not allow protected rights to be taken away on the whim of administrative officials."

ACLU of RI executive director Steven Brown added: “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. What the City has actually done to the Foxy Lady is no different. It is a serious attack on First Amendment rights, and we hope the Court will correct this injustice.”

The ACLU’s brief can be found here.

More info on this case, Foxy Lady v. City of Providence, can be found here.