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Eye On Boise

Federal lawsuit challenges Idaho liquor law that threatens licenses over risque performances

Idaho’s state liquor laws that forbid nudity and simulations of sex-related acts at premises with liquor licenses are unconstitutional, according to a federal lawsuit filed yesterday by the Idaho ACLU, a theater company, a performance artist and the Visual Arts Collective, an art gallery and performance space whose liquor license was threatened after the Idaho State Police took issue with a one-woman show there.

Boise State Public Radio reports that performance artist Anne McDonald was devastated when she learned that the VAC’s liquor license was threatened over her show; the venue settled in court with an $8,000 fine. “But the Visual Arts Collective specifically is an art gallery theater space that happens to have a liquor license," McDonald said. "They aren’t just a bar – they’re primarily an art space.”

McDonald’s performance at VAC, which is in Garden City, included burlesque dance and costumes that bared some skin.

Idaho already ran into legal trouble over the law when it went after a Meridian movie theater for showing the film “50 Shades of Grey.” Acknowledging that the law was unconstitutional, state lawmakers this year changed it – but only with regard to movies, not live performances.

The lawsuit against the Idaho State Police says, “Idaho’s liquor laws are antiquated and unconstitutional. They impose restrictions on freedom of expression despite that the Ninth Circuit held more than a decade ago that it was already ‘clearly established that liquor regulations could not be used to impose restrictions on speech that would otherwise be prohibited under the First Amendment.’”

In October, the state suspended the liquor license of the Coeur d’Alene Casino Resort Hotel for 10 days after a performance there by  the traveling male review “Hunks” included some dance moves to which state liquor authorities objected, citing the law.

Last January, the state revoked the liquor license of The Grail Restaurant in Huetter, between Coeur d’Alene and Post Falls, after that venue hosted "The Ultimate Male Review" in April 2014. The agency cited violations that included nudity and simulated sex acts; the restaurant subsequently closed.

The lawsuit, filed Thursday in federal court in Boise, says the Idaho law “casts an incredibly wide net that captures Tony-award winning plays, acclaimed ballets, and even gestures as staid and familiar as ‘Elvis’ gyrating hips’ within its vague prohibitions.” It also cites “the Idaho State Police’s heavy-handed enforcement” of the law.

“Live performances of theater, music and dance are guaranteed broad, prime facie First Amendment protection,” the lawsuit says. “Under the Constitution, ‘esthetic and moral judgments about art … are for the individual to make, not for the government to decree.’”

The lawsuit asks the court to overturn the law as unconstitutional, and enjoin the state from enforcing it.

Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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