Utah and Idaho -- two states with more in common than a border -- have been enforcing First Amendment-trampling liquor laws preventing adults viewing certain films from enjoying adult beverages while doing so. I'm not talking about porn theaters, although the use of the word "adult" certainly leads the mind in that direction. No, I'm talking about regular, old-fashioned R-rated films no one really has much objection to adults viewing, even those who often object to adults viewing films rated X and up.
In a clear waste of public funds and law enforcement resources, officers are sneaking off to R-rated films at movie houses serving alcohol in hopes of catching them engaged in double-devilry. The movie houses have been fighting back, noting (in lawsuit form) the enforced laws are unconstitutional and inconsistently enforced. Theaters in Utah and Idaho could expect visits from undercover prudes for films like "50 Shades of Grey" and, apparently, "Deadpool."
Theaters in both states sued their respective state alcohol boards. Brewvies -- the theater suing the state of Utah -- has been handed a win. Elizabeth Nolan Brown reports on the federal court's decision in the delightfully-titled article "First Amendment Protects Cinema's Right to Show Unicorn Masturbation Scene While Serving Alcohol, Says Judge."
A Utah movie theater that dared to serve alcohol during a sexually explicit movie has won its legal battle against the state's Department of Alcoholic Beverage Control (DABC).
"The State has violated the First Amendment by bringing an administrative enforcement action against a mainstream motion picture theater showing an R-rated movie," U.S. District Judge David Nuffer wrote for the court Thursday.
The decision [PDF] details a lot of the backstory, which includes state officials singling out Brewvies to score cheap wins for the state alcohol board. It also shows the state, after harassing Brewvies multiple times, suggesting it could preview all movies before showing (the court calls this "untenable"), alter the movies it shows to edit out "obscene" content (forbidden by contracts with motion picture studios), or just stop serving alcohol (lose a great deal of its profits).
It also shows an attorney at the state's attorney's office was the source of the sole complaint against Brewvies' showing of Deadpool -- the end result of which was even more harassment of the theater and, consequently, this lawsuit.
Between February 12, 2016, and March 24, 2016, Brewvies showed the movie Deadpool on one of its screens. A friend of Sheila Page, the attorney at the Attorney General’s Office who represents the DABC in enforcement proceedings, mentioned to Ms. Page that Brewvies was showing Deadpool. Once Ms. Page received the information from her friend, she sent an email to Defendant Margaret Hardie, who has been the DABC Compliance Officer assigned to Brewvies since 2014. In her email to Ms. Hardie, dated February 22, 2016, Ms. Page wrote: “I hate to bring this up, but it is just too blatant to ignore. Brewvies is showing Deadpool. The reviews describe explicit sex scenes and male and female frontal nudity. I know some people who have seen it, and they confirm that it is very raunchy amid the bloody violence. Perhaps you should refer it to [the State Bureau of Investigation].” That email, which was the only complaint received by the DABC about Brewvies showing Deadpool, triggered a referral to the State Bureau of Investigation.
Undercover officers were sent to "investigate." It would have been cheaper to keep them home. All three had already seen the movie, one of them multiple times. But their attendance generated an inadvertently-hilarious report on all the naughtiness contained in Deadpool... and gave Brown's article its unforgettable title.
Officer Bullock’s report describes certain scenes of the movie in terms of the prohibitions of Subsection 7. For instance, he states that the male and female characters were “shown numerous times engaging in acts or simulated acts of sexual intercourse” and that the male character “is shown on his back under bed sheets briefly engaged in masturbation or simulated masturbation using a stuffed unicorn toy.” He also describes a scene where the woman was wearing a leather bikini, with an imagined strap-on penis “that isn’t shown,” and “has her groin area pressed against the man’s posterior,” and she tells him to relax as he is sweating and grimacing. She then bends down and says, “Happy Women’s Rights Day” during what Officer Bullock calls “the sodomy or simulated sodomy scene.”
Officer Bullock also says that during one sex scene, the male character fondled the woman’s bare breasts and, finally, during the credits, Officer Bullock describes “a drawing of the main character (male) . . . ‘as he rides on the back of a unicorn, he rubs its horn briefly until the horn shoots out rainbows (simulating orgasm).”
Officer Bullock (along with Officer Cannon -- Utah's pro prudes seem to have the porniest of surnames…) presented their "findings" and the state went to work getting itself sued. In the end, it's the state hearing a judge whisper "It's First Amendment Day every day!" in its ear as it drives its point home.
The State offered only one governmental interest in support of Section 7’s restrictions: avoiding potential negative secondary effects from combining sexually explicit images with alcohol. Though this may be a compelling governmental interest, Section 7 is not the least restrictive means for accomplishing it.
Section 7 is overinclusive. A statute is overinclusive, and thus facially invalid, if there is a showing that the “law punishes a substantial amount of protected free speech, judged in relation to the statute’s plainly legitimate sweep.” If the statute is found to be overinclusive it will “invalidate all enforcement of that law, until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.”
Section 7 is overinclusive because it captures mainstream content.
The court continues, pointing out how the state's alcohol regulations serve to unconstitutionally regulate speech, a definite forbidden (government) act.
Section 7 reaches “many films that are far removed from what is colloquially termed ‘hard core,’ or even ‘soft core,’ pornography.” The State admits this. It makes no contention that Deadpool is pornography. The State only argues that by analogy short portions of Deadpool are like the films typically found in an adult theater.
Unlike the statute in Baby Dolls Topless Saloons, no language limits Section 7’s application to those businesses that are characterized by regularly showing sexually explicit material, who make that their essential nature. The State has violated the First Amendment by bringing an administrative enforcement action against a mainstream motion picture theater showing an R-rated movie. That demonstrates the breadth of Section 7’s reach. Section 7’s restrictions impose unacceptable limitations on speech that the State admits should be accorded full First Amendment protection.
State booze regulators will have to go back to the drawing board. The statute needs to be severely narrowed before it can be considered constitutional. Undercover officers Bullock and Cannon will have to start watching R-rated movies on their own time, on their own dime, and presumably without a notebook in one hand and a hard on for free speech oppression in the other.