The Law and the Skin Trade in the Windy City

XLP v. County of Lake: There Still May be Hope for Liberty in Lake County

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

A nice result for Liberty. Perhaps not the biggest decision on adult entertainment that has ever come down the pike, but from out of its courtroom next to the slow-moving Fox River in Elgin on December 20, 2000, the Illinois Appellate Court, Second District’s decision in XLP Corporation v. The County of Lake (No. 2-99-0788) is unexpectedly encouraging enough to those who are interested in the future of adult entertainment in Lake County (and all of the other counties in this metropolitan area) to bring to your attention.

For those who don’t leave the City much, you should know that Lake County is one of the most interestingly diverse counties in the State. It is the buffer county between Chicago and Wisconsin. Once largely agricultural with a few urban and industrial pockets, suburban sprawl is inexorably moving the farms out. The people who call Lake County home run the full range from famous sports celebrities and TV stars (Mike Ditka and Mr. T each lived there not long ago and Daniel J. Travanti still does) and Chicago’s captains of industry and finance, all the way down the food chain to Navy boot camp recruits at Great Lakes Navy Base, urban gangbangers and crack addicts. The less said about the western part of the County the better, but some people say that civilization ends just west of the Gurnee Mills Shopping Center.

Adult entertainment in Lake County is not a huge industry. There are two nude dance clubs and two book stores, and three of them are so close together near the Wisconsin State Line on US 41 that you could probably hop the distance between them on one foot. The Route 41 establishments are not exactly located in any residential garden district of the County. They are surrounded by used car lots, gas stations, convenience stores specializing in lottery tickets, cheap cigarettes and package liquor, and motels aimed at the sixteen-wheeler trade. At least one of these adult businesses has been around for nearly two decades. Almost at the diametrically opposite end of the County, at Lake Cook Road and US 14, there is another nude dance club that has been around under one name or another since Dr. Seuss was an intern.

But, as we have all come to expect, the existence of even one sexually oriented business anywhere is more than any ultra-conservative, authoritarian Bible Thumper moralist can tolerate. These rare folks toss and turn in bed at night and lose sleep at the thought that somewhere, within the geographic range where they have to power to affect decisions, somebody just might be watching an erotically exciting performance or videotape. And that thought is just too much for them to handle. So they start making phone calls and writing letters. The goofy thing is that, instead of being immediately recognized as the intolerant, eccentric cranks that they are, they are taken seriously by many politicians looking for an easy issue to look good on, and as a result they wield political power disproportionate to their modest number. It’s not often that a politician has lost his elective office because he was too tough on adult entertainment.

Two years ago, in February 1998,I attended a meeting of the Lake County Board when it enacted its current Adult Use Ordinance. I got up to speak at the meeting. This is an ordinance out of hell to anyone who loves the American notions of Liberty and tolerance, and I told them so. I told them that the ordinance was wrong for many reasons, but it was particularly obnoxious because it sought to destroy the businesses by restrictions rendering them unprofitable. It was expensively drafted by the law firm in which former U.S. District Judge Nicholas Bua was a partner; it sought to weave together in an impossibly repressive tapestry each of the most obnoxious restraints that courts have every upheld to restrict adult entertainment. A member of that law firm stood up after me and announced that, in his judgment, Lake County did nothing wrong by seeking to destroy the economic viability of adult entertainment, by steps that assured that no one could make a living in sexually oriented expression.

That is exactly what the ordinance aims at in its outrageous provisions.

It requires adult businesses to close on every Sunday and public holiday (including Pulaski Day and Election Day), it imposed hours of operation requirements far more restrictive than those imposed on bars, it prohibits customers from handing tips to dancers, and it requires that dancers be both horizontally and vertically separated from customers, seven feet horizontally if I remember correctly, and two feet vertically. It requires two sets of bathrooms, one for customers and one for entertainers, the construction of which would eliminate a big chunk of these relatively small establishments, reducing seating. (And a john for female patrons of these particular strip joints would not exactly get a lot of use.) It required book stores to take doors off of the arcade video cabinets. Thus, in significant part, it aims to destroy the ability of these businesses to make any money, and the clear motive of these restrictions is to drive adult entertainment out of existence in the County. It also engages in extensive invasion of privacy, amounting to a kind of proctology of the entertainers, by imposing an elaborate scheme of registration of dancers, similar to a scheme that the Seventh Circuit Court of Appeals recently called “harassment” in the Cumberland case. This, of course, was designed to make sure that no dancer would want to work in Lake County.

You should know that there are a great many cases from federal courts, including the Supreme Court, that have invalidated indirect attacks on speech and the press which aim at the economic viability of the expression, most notably when the US Supreme Court struck down the so-called “Son of Sam” laws enacted in 49 States and on a Federal level, laws that attempted to detain and put into escrow for crime victims the earnings that come from first-person true crime books. The Supreme Court pointed to Eldridge Cleaver’s Soul on Ice and Thoreau’s Walden Pond as crime literature which enriched America, books which simply never would have been written if the profits would have been chanelled into a victim’s fund. Indeed, it is clear to anyone that freedom of the press would mean little of practical utility to society if Lake County could enact a law permitting newspapers to be published but prohibiting a newspaper from paying its reporters or making a profit.

And so, Nicholas Bua’s law firm’s opinion notwithstanding, the aim of this law is almost surely unconstitutional.

The owners of these establishments banded together when the ordinance was drafted. They eventually directed their energies to a lawsuit challenging the ordinance in the State Circuit Court in Waukegan, seeking a declaration that it was unconstitutional and an injunction prohibiting the County of Lake from enforcing it. The Lake County State’s Attorney responded with a motion to dismiss the lawsuit and for judgment on the pleadings, claiming that it didn’t present any issue upon which a court could grant relief, and that if it did, the County deserved to prevail without any trial.

Circuit Court Judge Charlie Scott denied a motion to continue the hearing on account of the illness of the attorney for the adult entertainment interests and he granted the State’s motion for judgment on the pleadings, throwing the skin trade interests in Lake County out of court and deciding the case against them. Without hearing any oral argument. Without a trial.

So, the bookstores and gentlemen’s clubs took an appeal to the Second District in Elgin.

The Second District began its analysis by acknowledging that both exotic dance and non-obscene pornography enjoy the protection of the First Amendment. It next reached the basis that the County claimed justified its regulation.

The County denied that its aim was the suppression of expression.

Certainly not!

No, it claimed that it was acting to protect the residents of the County not from the bumps, grinds, areolas, mons vernerises and pierced navels of the dancers, nor from the tantric, acrobatic, and almost insolubly topological convolutions of the performers’ positions together with the pulsing, full-head-of-steam-train-whistle ejaculations in the videotapes; rather, they said, the County was concerned only with the argued “secondary effects” of the expression. “Secondary effects” is a term that we have heard so much about in local ordinances; it amounts to the assertion that the existence of a sexually oriented business will drive down property values and attract crime much as the sun inevitably rises in the West each day. Why, the Court asked, did the County so believe? Where was the evidence that any such threat was real? Well, the County answered, we’ve looked at certain unspecified studies from certain unnamed cities and we believe that their conclusion is that the threat is real, and that’s the only reason we need if we want regulate our existing adult businesses into economic oblivion. The Second District, on the lazy banks of the River Fox, disagreed.

It ruled that Judge Charlie Scott had gone too far: That in granting judgment on the pleadings to the County without a trial or an evidentiary hearing,, he had gone outside the papers in front of him and assumed that what the County said in justification of its ordinance was true. The Second District said that the adult clubs and bookstores deserved a hearing before any judge reached that kind of conclusion, an opportunity to cross examine the County’s witnesses and present their own evidence before any court could decide that the restrictions and regulations advanced any substantial governmental interest that could conceivably justify them. In so deciding, the Second District took a long look at Dima v. Town of Hallie, Wisconsin, 185 F.3d 823 (7th Cir., 1999) -- a case that was discussed at length in previous columns in this series -- a case in which the US Seventh Circuit Court of Appeals found the factual basis for the Town of Hallie’s restriction on the hours of operation of an adult bookstore to be “only minimally” enough to justify the law. Here, the Second District noted, there was far more than a modest restriction on the hours of operation, such as the one in Dima, that the Lake County ordinance was different from one that could be assumed to have little or no economic impact.

With uncommon candor, the Second District branded Judge Charlie Scott’s decision a “value judgment on the merits.” And that, indeed, is what the decision in Waukegan amounted to, though it pretended to be based only on the contents of the legal pleadings filed with the court and laid out in front of the judge.

The Second District noted, with apparent significance, at least twice, that some of the businesses in issue had existed for fifteen years or more. It hinted that more factual support was required to put them functionally out of business in Lake County than the published opinion of some land use planner in Indianapolis or in other points more remote. The Second District came right out and said that even an employee’s conviction of a sexual offense for which the business itself was not found responsible, was not enough to “justify all the regulations” in the ordinance.

It is now time for the members of the authoritarian right to tremble: It seems like at least one court close to home will actually put them to proof of their cultic belief. They will have to prove that adult entertainment fouls the nest, with - - dare I write it? - - real evidence of a nature comparable to that presented in other cases where facts are in dispute.

Now that may not seem like much to you. But to those of us who stand ever at the forward edge of the battle area, it is a victory. It is at least a small victory when cities, villages, or counties are required to demonstrate with real facts that they have a damned good reason why an erotic dancer should be hauled off the stage and an adult bookstore shuttered in a land that calls itself free. For too long courts have assumed the cultic doctrine and belief system, that sex is a bad thing necessarily corrupting people, to be unchallengeable and unassailable and certainly true. Well, the Second District says that this belief can be challenged in an evidentiary hearing. Now this lawsuit and the ordinance which precipitated it will go back to Waukegan, and this time there will be a hearing. I suspect that, with a chance to put on some evidence, it will be demonstrated that this belief is false. The Lake County Board now knows that it possesses no blank check upon which to draw out the Liberty of its people; it will be held to account.

God bless the First Amendment!

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