Theater Sues State Police For Using State Liquor Laws To Walk All Over The First Amendment

from the creepy-cops-on-creeping-missions dept

Tue, Jan 26th 2016 6:42am — Tim Cushing

In which we learn the Idaho State Police Department isn't so much interested in law enforcement as it is with easy wins.

The operator of the Village Cinema is suing the Idaho State Police for threatening to revoke the theater’s liquor license for serving alcohol while showing the R-rated movie “Fifty Shades of Grey” last February.

Why would that even matter? Because Idaho has a law in place which ties liquor regulation to a bunch of sexual activity, most likely meant to keep booze sales out of strip clubs and/or porno theaters.

Idaho law prohibits places licensed to serve alcohol from showing movies that depict “acts or simulated acts of sexual intercourse” or “any person being touched or fondled” in areas including the breast and buttocks.

Two state police officers bought alcoholic beverages and tickets to "Fifty Shades of Grey." They also took copious amounts of notes, so if you'd like to see the "highlights" of the film without having to suffer through all of it, skip to page 28 of the filing. That's the Idaho State Police's criminal complaint and it contains a detailed description of every sex scene in the film.

The theater is allowed to sell alcohol to attendees, who are then directed to "VIP" areas of the theater, cordoned off from non-drinkers. The only stipulation is that it can't sell alcohol to viewers with tickets to movies where "simulated sexual acts" might be depicted. As the lawsuit points out, the actions of the Idaho State Police -- which threatened to pull its liquor license -- have First Amendment implications.

Idaho Code § 23-614 purports to authorize the Director of the Idaho State Police to punish the owner of a licensed movie theater by suspending or revoking his or her liquor license, or by imposing a fine, based on the content of movies that the owner decides to show.

Idaho Code § 23-614 purports to authorize the Director of the Idaho State Police to suspend or revoke a liquor license, or impose a fine upon the licensee, based on the content of movies that are not legally obscene and that have artistic merit.

Accordingly, Idaho Code § 23-614 is a content-based restriction on speech that is prohibited by the First Amendment to the United States Constitution, as applied to non-obscene movies.

The law itself appears to be unconstitutional. Certainly, the enforcement of it in this fashion is.

The cinema’s lawyer, Jeremy Chou, cites a 9th U.S. Circuit Court of Appeals decision that said it had been “clearly established that liquor regulations could not be used to impose restrictions on speech that would otherwise be permitted under the First Amendment.”

But that's what's happening here. As the theater points out, plenty of other R-rated films contain depictions of sexual acts. It lists several other Academy Award-nominated films that were screened during the same year -- none of which received the same attention from law enforcement "Fifty Shades of Grey" did.

a. “American Sniper”
b. “The Grand Budapest Hotel”
c. “12 Years a Slave”
d. “Dallas Buyers Club”
e. “The Wolf of Wall Street”
f. “American Hustle”
g. “Les Misérables”
h. “Silver Linings Playbook”

The only exception was "The Wolf of Wall Street." Apparently, law enforcement received a "tip" that alcohol would be served to viewers of the film. Officers informed the theater that serving alcohol would violate the law and the theater made those showings alcohol-free.

The law forces theater owners to either guess what sort of simulated sexual acts will fly under state police radar or simply ban alcohol consumption at a majority of its screenings. Rather than play this broken game of chance with local law enforcement, the theater is seeking to have the law struck down as unconstitutional. It notes that the statute has had a detrimental effect on its income and notes that it makes it far too easy for alcohol-free competitors to send law enforcement out to hassle staff and supervisors by phoning in "tips" any time a new title appears on the marquee.

Beyond all of that, there's the issue of law enforcement resources. Is this the best way to spend taxpayer money? Playing gotcha with a local theater showing MPAA-approved films that are clearly protected expression? Even the police department's criminal complaint states more than one employee informed undercover "detectives" they could not drink alcohol while watching "Fifty Shades." But because one server brought them drinks before the film started, the agency decided to go after the theater's liquor license. It's the sort of effort that puts the "petty" back into "petty criminal offense." It's selective enforcement that does little more than turn the government into everyone's prudish aunt, wagging a finger at booze consumption, sexual activity or any combination of the two.

296110742-Movie-Theater-Lawsuit (PDF)296110742-Movie-Theater-Lawsuit (Text)

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Filed Under: 50 shades of gray, first amendment, free speech, idaho, idaho state police, liquire license, movies, theater
Companies: village cinema

44 Comments

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Moonkey, 26 Jan 2016 @ 7:00am

I'm not sure I'd go to a movie to get drunk anyway. So many things could go wrong. Like ending up watching a Star Wars prequel.
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Anonymous Coward, 26 Jan 2016 @ 7:05am

Re:
Well for this particular movie: anything beyond "well toasted" is kinda necessary to get through the movie without clawing your own eyes out.
It's either that duct-tapeing a pair of welding goggles to your face.
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That Anonymous Coward (profile), 26 Jan 2016 @ 7:07am

Thank the FSM that there isn't any crime in Idaho, otherwise one would question the wisdom of putting time and resources into this stupid operation and the subsequent legal battle to try and uphold an unconstitutional law.

Heaven forbid you see a titty getting jiggled while holding a drink... it could lead to women wearing skirts ABOVE the ankle.
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PaulT (profile), 26 Jan 2016 @ 7:08am

Re:
"the content of movies that are not legally obscene and that have artistic merit"

I know they're not exactly legally binding like the ones in other countries, but has there ever been a movie with a valid MPAA certificate below an X/NC-17 that's been held up as obscene? If not, it seems like a massive waste of time to go trolling R rated films.
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PaulT (profile), 26 Jan 2016 @ 7:10am

Re:
"I'm not sure I'd go to a movie to get drunk anyway"

There's a big difference between "going to a movie to get drunk" and "I'm an adult and I'd like a glass of wine or cold beer with my movie instead of a soda the size of a small child".

"So many things could go wrong. Like ending up watching a Star Wars prequel."

Even worse: you could be watching them sober
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PaulT (profile), 26 Jan 2016 @ 7:12am

Re:
I like to think that those two officers just *really* wanted to see the movie but had to come up with an excuse they could use with the other guys at the station...
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Anonymous Coward, 26 Jan 2016 @ 7:13am

puritan losers
So these officers are sitting in the theater, and pretending to drink, while they pull out stopwatches and take notes on all the dirty sex things happening on screen. So they can go tell teacher and get the bad kids in trouble.

How do these people not go home and think, God I am such a fucking loser?
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Moonkey, 26 Jan 2016 @ 7:14am

Re: Re:
True. Not everyone wants to grab a 6-pack and head to the front row.

"Even worse: you could be watching them sober"

Oh god you're right.
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Mason Wheeler (profile), 26 Jan 2016 @ 7:17am

I must be missing something. How does this have any First Amendment implications whatsoever, when the offending act is not showing a movie (protected speech) but serving alcohol (not protected speech) while showing the movie?
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PaulT (profile), 26 Jan 2016 @ 7:28am

Re:
I'd presume because the act of serving alcohol is not always illegal, but becomes illegal based purely on the content of the movie.

If the cinema weren't allowed to serve alcohol regardless of the content of the movie there probably wouldn't be a speech issue. But, since the content of the movie/speech is what's used to determine the legality of the alcohol, it becomes a speech issue.
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Anonymous Coward, 26 Jan 2016 @ 7:51am

Re:
You should read the article in it's entirety before commenting if you have the time!

"The cinema’s lawyer, Jeremy Chou, cites a 9th U.S. Circuit Court of Appeals decision that said it had been “clearly established that liquor regulations could not be used to impose restrictions on speech that would otherwise be permitted under the First Amendment.”
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wereisjessicahyde (profile), 26 Jan 2016 @ 8:01am

".....that have artistic merit" This is 50 Shades of Grey, I don't think it counts.
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Anonymous Coward, 26 Jan 2016 @ 8:15am

Re: Re: Re:
I love my local indie beer and pizza theater. Microbrews, local pizza brand, small shelf in front of the best seats for holding your food and drink, and it's the only way I can take my girlfriend to movies she wants to see and still tolerate the experience.

Let's just say that from our experience seeing the Twilight films, I'm on Team Porter.
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mcinsand, 26 Jan 2016 @ 8:19am

'artistic merit'
'Artistic merit' lies either in the eye of the beholder or the wallet of the taxpayers. When I lived in Asheville, they passed an anti-junk law to punish those that might have semifunctional cars in their yards. At the same time, the Federal Building put a piece of metal 'art' in front of the building in town at a womdidgeous cost to the taxpayers. Give me any hulk of a vehicle, and I'll see more art in the (remaining) paint color and fender curves than I'll ever see in a hulk of randomly-shaped pieces of rusty steel that were randomly welded together.

I'm not dumping on modern art, but I am dumping on hypocritical legislation, particularly where one person's art is another person's trash. And that is a huge driving force behind the First Amendment. An opinion that one citizen might find objectionable is dearly held by another. Personally, I doubt that I would find Fifty Shades of Gray as an artistic piece, but I am biased; I can't get past the knowledge that the book started out as Twilight fanfic. However, a world that viewed art/non-art from a perspective of one person would truly suck, so me thinking that it's not art even if I did see it should appropriately count for zip.
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Anonymous Coward, 26 Jan 2016 @ 8:22am

Re: puritan losers
To be fair, I'd rather them be out watching softcore trash than beating up or shooting minorities. We've come along way if this is the cops' bored activity.

"How do these people not go home and think, God I am such a fucking loser?"

I think cops have developed a thick coating that protects them from those kinds of thoughts called ego or hero complex. They're out protecting you from slightly tipsily watching a bad movie. You're welcome. And don't dare think you can question them since they put their lives and tastes in movies on the line for you everyday.
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Anonymous Coward, 26 Jan 2016 @ 8:24am

Re: 'artistic merit'
You mean "in the eyes of the beerholder."

https://youtu.be/Frd53vbCHLg
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Adam (profile), 26 Jan 2016 @ 8:50am

yeah, ok.
My guess is they only want to bust them because the theater didn't sell donuts.
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Ninja (profile), 26 Jan 2016 @ 9:01am

Re: Re:
Even worse: you could be watching them sober

This one deserves a funny vote. *holds a glass of wine for a toast*
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Ninja (profile), 26 Jan 2016 @ 9:04am

Re:
The offending act is showing 50 Shades of Grey. I mean, a movie that bad has to be an offense. But alas the 1st is for everybody so I support the cause.

Disclaimer: this pseudo-rant (I haven't watched the movie nor read the book) was not written while drinking alcoholic stuff.
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Ninja (profile), 26 Jan 2016 @ 9:05am

Re:
I've seen a painting that's "whit on white". Don't ask.
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Anonymous Coward, 26 Jan 2016 @ 9:21am

Morality Police
I'm glad that we have people out there deciding for us what is an isn't allowed. Its not like we the public have brains or anything to judge for ourselves. Hopefully the department that sent these two can be rewarded with unpaid vacations for the rest of their careers.
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Anonymous Coward, 26 Jan 2016 @ 9:22am

Sounds to em like they went there to find fault with the theatre over anything that could be used against them.

I would be curious if the people that own this theatre have pissed off the local police in some way that the police are doing this in retaliation.
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Anonymous Coward, 26 Jan 2016 @ 9:29am

Re: Re:
Because anything, even not playing music, can be 'art'...
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Chris Brand, 26 Jan 2016 @ 9:40am

Can you imagine the briefing ?
"So what's our next job, Sarge ?"
"I need you to buy beer and go and watch a movie, paying particular attention to all the sexual stuff."
"It's a tough life in law enforcement, that's for sure!"
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Mason Wheeler (profile), 26 Jan 2016 @ 10:25am

Re: Re:
And who is imposing restrictions on the speech? No one's saying they can't show the movie because this is a place where they sell alcohol; they're imposing restrictions on the sale of alcohol, which is not in any way restricted speech.
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beltorak (profile), 26 Jan 2016 @ 10:28am

Re:
This is exactly the danger when people say not to worry about ridiculous laws "because it's not enforceable" or "they won't bust you unless you're an asshole". Shit like this becomes a convenient tool to be used for petty vengeance.
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Anonymous Coward, 26 Jan 2016 @ 10:40am

Re: Re: Re:
this of it this way.

the government says you can drink all the beer you want.
they say you can also curse all you want
but if you're drinking beer, they say you can no longer curse.

that is a first amendment violation
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JoeCool (profile), 26 Jan 2016 @ 10:43am

Re: Re:
Even worse, they got the state to pay for their drinks and tickets, and given prices today that should be Grand Larceny.
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Anonymous Coward, 26 Jan 2016 @ 10:45am

Re: Re: Re:
No one's saying they can't show the movie because this is a place where they sell alcohol; they're imposing restrictions on the sale of alcohol, which is not in any way restricted speech.

That argument doesn't work. They're restricting the sale of alcohol, which is going to cut into their profits, which is going to cause them to not show this type of movie based on government action. Most of a theater's profits are from the concessions, not from ticket prices.

Imagine if the government passed a law saying that newspapers couldn't sell advertising in any issue that exposed government corruption. By your argument, the government could say "Hey, we're not passing ANY law about not exposing corruption; we're just passing a law about selling ads. If they want to make money they can just charge a higher subscription price."

That said, I'm not 100% sure that depictions of sex are what the founders had in mind when they passed the First Amendment.
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Anonymous Coward, 26 Jan 2016 @ 12:07pm

Re: Re: Re: Re:
Portland's Hollywood, Laurelhurst, etc?
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Anonymous Coward, 26 Jan 2016 @ 1:22pm

Re: puritan losers
How do these people not go home and think, God I am such a fucking loser?
Being a sociopath helps.
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JEDIDIAH, 26 Jan 2016 @ 1:54pm

I pity the fool (still going to the cinema).
Yes. We call these "three drink movies" at our house.

Fortunately, we have our own media room that's the equal of any "small house" at an actual cinema. So we don't worry about this fascist nonsense.

Let the Jack Daniels flow like water...
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Anonymous Coward, 26 Jan 2016 @ 2:08pm

"The law itself appears to be unconstitutional."
That's the real problem. The police were just enforcing it.
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That Anonymous Coward (profile), 26 Jan 2016 @ 4:22pm

Re: Re: Re:
Gee at most jobs drinking on the job gets your ass in a sling...
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Anonymous Coward, 26 Jan 2016 @ 4:58pm

Re: Re: Re: Re: Re:
Close. St. Johns Cinema, though I do enjoy McMenamins St. Johns and the Kennedy School theaters too.
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Christenson, 26 Jan 2016 @ 7:49pm

Short Re-Write of Story
Let me re-write this story for you:
Peep-show obsessed cop pissed he's not getting his rightful free everything from theater and is expected to follow the law, so he busts the theater after a long party recounting all the good parts of the porno flick in writing at the station using pirated video from his cell phone. Public-spirited theater sues for first amendment violation, doing everyone a favor -- and possibly Streisanding the harassing cops.

Note: the above recitation is fact-free and sourced entirely from leaps of my imagination.

The book itself has been reviewed as "50 Shades of Crap"...I found it unreadable myself, it just didn't hold my interest.
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PaulT (profile), 27 Jan 2016 @ 12:49am

Re: Re: Re:
"they're imposing restrictions on the sale of alcohol, which is not in any way restricted speech."

No, it's still a restriction on the services they can offer, based solely on the content of the speech. It's an indirect restriction to be sure, but it's still a restriction.
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PaulT (profile), 27 Jan 2016 @ 12:53am

Re: Re: Re: Re:
"Most of a theater's profits are from the concessions, not from ticket prices."

Thanks, that's possibly the most important thing to note here. The reason they offer alcohol is because it helps draw people in, and they have higher profit margins. If they can't sell that when they show certain kinds of movies, they will inevitably show less of those movies because they make more money with other kinds of movie.

@Mason: That's where the speech issue comes in. The government are indirectly trying to persuade the cinema to curtail certain kinds of speech.
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Wendy Cockcroft, 27 Jan 2016 @ 2:44am

Re: Re:
It began life as Twilight fan fiction. 'Nuff said!
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I am American, 27 Jan 2016 @ 10:26am

America Is Fucking Tired
America is fucking tired of all the LAW WHORES micromanaging everyone's life. Prosecution is intrinsically biased toward those law enforcement officers who bring them their meat and potatoes, their bacon, their gravy. We are fucking tired of NO JUSTICE here. Sling it against the wall and see what sticks. Passing unconstitutional laws and let them bring suit aqgainst it. We are fucking tired of that business model that is juxtopposed against Americans. This is still the land of the free. ***LET FREEDOM RING***
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Anonymous Coward, 27 Jan 2016 @ 1:41pm

Re: Re: Re:
And who is imposing restrictions on the speech? No one's saying they can't show the movie because this is a place where they sell alcohol; they're imposing restrictions on the sale of alcohol, which is not in any way restricted speech.

Then I supposed that you would also say that just restricting someone's movement by putting them in jail for what they say "is not in any way restricted speech." I mean, they can still say it, they're just going to jail, right?
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kog999, 28 Jan 2016 @ 1:36pm

Re:
because they are being punished for showing the wrong type of movie.
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dobreme, 28 Jan 2016 @ 9:17pm

date
I wonder if the detectives enjoyed their date. Such titilation. On the taxpayers' dime too. And drinking on duyy, you don't say?
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Anonymous Coward, 3 Mar 2016 @ 4:11am

That's the Idaho State Police's criminal complaint and it contains a detailed description of every sex scene in the film.

I believe that goes beyond fair use. Or did they just need to cover their asses?
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