Courtrooms in the Clouds:
Two G-r-e-a-t Decisions in the Courts: Liberty 2, Blue Noses 0:

DuPage County Adult Use Ordinance Declared Unconstitutional in Federal Court
City of Chicago Loses its Ordinance Banning Nudity in Liquor Establishments

By J. D. Obenberger, Attorney at Law
© MMI J. D. Obenberger, All Rights Reserved

As I said last month, there aren't many places in the world where justice is administered from the high floors of skyscrapers, but Chicago is one of them. Out of the Courtrooms in the Clouds come two significant news items this month.

For several years my office has been engaged in a legal struggle with lawyers representing the County of DuPage directed at having the DuPage County adult use ordinance declared unconstitutional. Last spring I wrote about that endeavor in this column, and I hoped that the ordinance might be set aside as invalid last summer, in 2000.

It took longer than anyone expected.

But it finally came to pass. On March 29, 2001, we finally succeeded when a judge of the United States District Court for the Northern District of Illinois granted summary judgment in favor of a company seeking to build a gentlemen's club in DuPage County. The judge found two reasons why the ordinance defied the First Amendment.

The first ground is narrower than the second. He held first that the provision prohibiting any adult use establishment from locating within 1,000 feet of an undeveloped tract of forest preserve, held for nature conservancy reasons and not in active recreational use, is a provision that advances no significant governmental interest, and therefore could not stand to preclude and block expressive erotic entertainment. He essentially held that the bullfrogs and raccoons and prairie grasses weren't likely to suffer any adverse effects from their proximity to bare female breasts within the walls of a nightclub 750 feet away. We think that the logic of this position is inescapable.

Second, he found that the ordinance acted to prevent any adult entertainment at any location within the zoning jurisdiction of the County and that the operation of the ordinance amounted to a total and outright ban against a constitutionally protected form of expression. The County had argued that the holding in Schad v. Burrough of Mt. Ephraim just didn't apply to it because of circumstances beyond its control. (In Schad, the United States Supreme Court held that a zoning jurisdiction which permitted any kind of commercial activity could not validly exclude live entertainment - including live erotic entertainment from its jurisdiction.)

We extend to all of the residents of DuPage County our best wishes and congratulations at their entry into the twenty-first century (from the nineteenth, a few might say) and into the ways of a land of Liberty and tolerance.

God bless the First Amendment!

I should add that, on April 26, 2001, the United States District Court in Chicago modified its order and restricted it holding to the spacial separation - the buffering - between adult establishments and forest preserves. While that still wins the case for this particular defendant whom my office represents, we think that the federal judge got it right the first time in declaring that the ordinance was wholly invalid because the zoning ordinance fails to provide an adequate number of locations for adult businesses. Both of the orders may be found on my firm's web site, at http://www.xxxlaw.net, and by then clicking on "Adult Use Zoning" in the red table on the site's front page.

* * * * * * * * *

It has also come to our attention that the City of Chicago and its Corp Counsel's office sustained a major defeat in their bid to have a certain Gentlemen's Club on North Kingsbury closed as a public nuisance for permitting the display of latex-coated breasts by its dancers in a liquor establishment. This major victory for free speech and Liberty comes out of the Chancery Division of the Cook County Circuit Court.

The most interesting part of the Chancery Decision is its holding that Article I, Section 4 of the Illinois Constitution, which guarantees that "all persons may speak, write and publish freely" is broader than the First Amendment in the United States Bill of Rights. The court noted that while the First Amendment in the US Constitution acts only to restrict the government from passing laws that infringe freedom of speech, the Illinois Constitution affirmatively declares the existence of the right of freedom of speech. The Order cited Elmer Gertz, Chairman of the Bill of Rights Committee in the 1970 Illinois Constitutional Convention, whose statement suggests an intent by the Convention to provide Illinois residents with broader expressive liberties than protected by the US Constitution. While this conclusion was suggested by the Illinois Supreme Court in People v. DiGuida, 152 Ill. 2d 104, 121 (1992) and by the Appellate Court in another case, this was the first case in which such a conclusion was accepted for the resolution of a free speech case.

The Cook County Circuit Court held that a law distinguishing in the amount of partial nudity that might be permitted in a liquor establishment in the City of Chicago was subject to the "strict scrutiny" test of First Amendment analysis because the law was content-oriented, that is, directed at the nature of the expression, but that even if the less onerous "intermediate tier scrutiny" analysis usually applied to laws affecting "merely" the "time, place and manner" of expression were applied, the law still could not overcome the constitutional impediments to its enforcement.

The evidentiary hearing that led up to this order was not exactly unprecedented in Chicago jurisprudence, but amazing nonetheless. It featured the live appearance of "models" tendered by the City of Chicago in open court featuring breasts, bare but for the application of latex paint on the breasts and undercover surveillance "James Bond style" videos of the dancers at the club in question, taken by stealthy police officers posing as patrons, using a video camera hidden in a necktie. The Order also relates that these officers attempted to entrap the dancers into agreeing to acts of sex for money - prostitution - and that the clear evidence at trial was that the dancers just weren't interested.

The City attempted to prove a violation of the ordinance by showing that the dancers displayed - - please sit down if you are faint of heart before you read on - - their buttocks. The City claimed that this terribly lewd display warranted an injunction to close the club. In refusing the injunction, the court sagely and wisely noted that the display of buttocks in the club was indistinguishable from what is seen on the bathing beaches of this fair City, on the sunny shores of Lake Michigan, all though our all-too-brief warm season.

The court noted at considerable length that the City failed to show any actual adverse secondary effects from the kind of semi-nude performance at the club. It failed to show any actual increase in crime or any decrease in property values. Moreover, it failed to bring forth even one neighbor to complain about the activities of the club.

It's been reported to us informally that the City of Chicago has, or plans to file an appeal from this decision. It should save itself the embarrassment and the expense. In an age when hard core insertions are part of the normal fare of many, if not most, cable TV system's ordinary fare on pay-per-view, where even the most conservative hotel chains provide such programming for in-room viewing, where such anatomical congress is found in the pages of Penthouse magazine each month, for sale at convenience stores throughout the whole nation, where the ordinary street dress of young women leaves as little to the imagination as it presently does, where the far more graphically sexual conduct and attire of the participants of the annual gay rights parade take place under the auspices of and with the support of City Government, it becomes hard to imagine that an ordinance banning skimpy clothes in a liquor establishment serves any actual purpose related to the protection of the public in any palpable way. At its root, it serves only as a quaint and curious attempt to hold on to a notion of public morality that has been superseded by societal change, and even by changes recognized by Chicago City government.

It is time now, for Chicago, too, to fully join the twenty-first century, and to accommodate its laws on erotic entertainment to the prevailing tolerant views of the majority of Chicago residents. We Americans are a free people, and we pride ourselves on our perceived freedom to make our own moral choices. It is not for trivial reasons that the word "Liberty" is stamped on every coin. It is not insignificant that the Statute of Liberty is the most identifiable American icon here and throughout the world. No one struggles to come to this land, or to this City, because it imposes a lofty and inspiring moral standard on its unwilling citizens. People come here, to America and to Chicago, for opportunity and for freedom. They come here to set and abide by their own differing standards of right and wrong in the personal sphere. Whatever is good about America - - and whatever is good about Chicago - - ultimately comes from providing that opportunity and that freedom. City Hall should encourage those things, and make the courageous stand that the numerically small but vocal intolerant crank fringe will not be further indulged, and that this City will stand for personal freedom in all significant regards.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com