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

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