The Senate State Affairs Committee voted unanimously this morning in favor of legislation designed to settle a lawsuit by the Visual Arts Collective against the Idaho State Police by writing an exemption into the state’s laws banning nudity and explicit live performances at places licensed to serve alcohol for “any theatrical or artistic performance which, when considered as a whole and in the context that it is used, expresses matters of serious literary, artistic, scientific or political value.” The exemption also would require that those performances be held at a theater, concert hall, art center, museum, event center or other location that’s not mainly in the business of explicit live adult entertainment.

Senate Minority Leader Michelle Stennett, D-Ketchum, said, “I think all of us would have a very different definition of what’s considered literary or artistic.” She asked Cynthia Yee Wallace, deputy attorney general for the Idaho State Police, if the provisions about where performances are held help make the distinction.
 

“Absolutely,” Wallace responded. “It would be very difficult in the statute for a typical strip club to ever fall within the exception. … It’s determined on a ‘reasonable person’ standard. … The case law says it’s more than simply an effort to sort of cloak otherwise obscene conduct.”

The lawsuit from the VAC, which was cited for serving alcohol while hosting a burlesque performance, followed a successful lawsuit against ISP from Meridian Cinemas after an ISP sting operation resulted in citations for serving beer while showing the movie “Fifty Shades of Grey.” That lawsuit settled after the Legislature removed restrictions on showing of explicit films at licensed premises that violated the First Amendment. The VAC lawsuit, regarding the remaining provisions about live performances, followed soon after the first one was settled. Yee said if the Legislature doesn’t change the law, the VAC lawsuit will proceed.

SB 1144 won the committee’s unanimous support; Sen. Cherie Buckner-Webb, D-Boise, made the motion to approve it. It now moves to the full Senate.