December 22, 2002 01:25pm
The Latour Letter - Freedom Wins in Kandyland Case
Source: Adult Industry News
by: Miss Charlie Latour
Burden of Proof Shifted - Free Speech Equal to Property Rights - Pennsylvania Case Alters Secondary Effects Ordinances. Pennsylvania Supreme Court rules that a "perceived" negative effect is not a good enough reason to ban a business.
Quietly, in a cold and forbidding place, far from the shores of sunny California, the bright lights of New York, or the sassy sounds of New Orleans the judicial system has delivered a course-altering ruling that will have a significant and lasting impact on free speech, including adult entertainment and other forms of erotica.
Erie, Pennsylvania, the frigid, damp and somewhat dreary Northwest Pennsylvania town on Lake Erie has been the epicenter of the "Kandyland" case and now the beacon of hope for all who worried that free speech would be eviscerated by perceived negative secondary effects on property rights, as defined by persons who might harbor other agendas. Simply, two legal rulings have brought into balance, property and free speech rights.
I know that everyone loves the highly charged, sex dripped stories of how some form of adult entertainment is being victimized by Puritanically evil, anti-sex groups. Hey, everyone loves to be the victim, that's the new American way of life. The tabloids love it, television and radio newscasters and opinion show hosts love it, newspapers love it, politicians love it and lawyers really love it. In this case and in my non-legal opinion, the judicial system has worked to provide a balance, by shifting the burden of proof, that will go unnoticed, except for the highly charged momentary headlines, "Court Strikes Down Ban On Dancing Clubs", which may or may not make your community newspaper and certainly will not make the evening news.
The limited headlines will quickly fade from view, but I believe the authors of the U.S. Constitution are sighing in relief. In all my studies, and my continual reading of constitutional scholars, I can find no stronger reason for the First Amendment than to point to the repressive and repugnant effects of placing the burden of proof onto those whose free speech is being stifled. Not a single author or signatory of the U.S. Constitution foresaw the issue of sexually oriented businesses, but what they did, in all their ultimate wisdom foresee, was the efforts of one group to silence or deny rights to another. Some people find sexually oriented businesses repulsive and they have aright to feel that way and a right to their speech against it, but throughout the world the United States has the reputation of protecting speech, even in it's most repugnant form. The burden must be on those who want to limit speech, not on those who wish to be heard, read or seen. If some want to limit speech by reducing it to "secondary effects" then they should have the burden of proof and the proof should be real not perceived.
This can be condensed into very simple terms, because the outcome is very simple, although I am sure lawyers of all strips will try to complicate it. The United States Supreme Court had previously ruled that banning nude dancing is as affront to the free speech inherent in erotica. This laid the ground work for the U.S. Supreme Court to refer the Kandyland case back to the Pennsylvania Supreme Court. Local officials in Erie attempted to ban nude dancing based on an ordinance that uses the very scary principal of "perceived secondary effects". I have previously written about the dilatory impact of capricious and nebulous secondary effects ordinances. This is not a very sexy issue to write about, nor one that captured the interest of Joe and Mary Sixpack.
In very general terms, it was an issue of property rights versus free speech and who has the burden of proof. If the elected officials of a community could prove (which they rarely can) that a sexually oriented business had an negative impact, even if perceived and not real, to the community which are secondary to the business, such as increased crime, increased loitering, increased litter, increased traffic, increased noise, or decreased property values they could ban such a business. This sounds so petty, that no one, except a few activists and those who own and operate sexually oriented adult businesses took notice. The long term impact of such an ordinance could alter any community, and not just with adult businesses.
Does the construction of a new mega-store in a smaller town or city have secondary effects? Sure it does, if you view things the way the local downtown mom and pop stores view them. All of the things I listed above, which can be attributed to an sexually oriented adult business, could, theoretically, be applied to a any significant change in a community. If the use of these ordinances and the "perceived" negative effects was allowed to stand there would be growing pressure to use the ordinance in ways other than to ban adult entertainment. The Pennsylvania Supreme Court has balanced the rights of property owners, as represented by a few special interest groups, and the free speech rights of those who operate any, and I stress ANY, type of business, especially those with a more controversial product or viewpoint.
What the Pennsylvania Supreme Court ruled was that a "perceived" negative effect is not a good enough reason to ban a business. It did not rule against the use of secondary effects, but it now places the burden of proof onto those who would restrict the rights of others. This, ladies and gentlemen, is the real meaning of this ruling. Yes, this is simple. The burden of proof now belongs to those who would restrict the rights of others and the proof has to be real not perceived. No longer should a dance club owner have to prove that there is no secondary effects, particularly difficult if the secondary effects are perceived. Those seeking to restrict the rights of others have to prove that there is "real" negative effects. Simply switching the burden of proof will place free speech rights on equal footing with property rights.
This is truly a very important ruling that will unfortunately go unnoticed by most. All of the people involved in the Kandyland case deserve our thanks, as they have once again proved that the system of governance we live under does work very well!