Federal Court Says Utah Theater Can Serve Up Beer And R-Rated Movies Simultaneously

from the time-to-rub-out-a-new-resume,-regulators dept

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.


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  • identicon
    Anonymous Coward, 7 Sep 2017 @ 8:08pm

    Another Federal judge who wishes he was King, replacing the publicly accessible lawmaking process with his personal opinion.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 7 Sep 2017 @ 8:25pm

      Re:

      The judge said that those 'publicly accessible laws' were unconstitutional. What happened to your 'publicly accessible lawmakers' that they could make such a law?

      Oh, right, they just wanted to impose their version of morality on others, whether or not it bent the Constitution, which is a higher law. Morality first, Constitution second does not work.

      reply to this | link to this | view in chronology ]

      • identicon
        ryuugami, 8 Sep 2017 @ 3:31am

        Re: Re:

        Those are the same people who are terrified that sharia law will be coming to the West any day now, forcing religion into our laws (which are currently completely secular, of course). I'm forced to assume they don't like it because they oppose copyright infringement.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 8 Sep 2017 @ 9:05am

          Re: Re: Re:

          All laws are the product of someone or a group forcing their morals/ethics onto someone/others.

          In Layman's terms, everyone has a religion of one of three types.
          Some are poly-theistic. (multiple gods)
          Some are mono-theistic. (single god)
          Some are nulla-theistic. (no god)

          The idea that a law should not be allowed because it is derived from the poly or mono types while being okay if it is derived from the nulla type is intellectually corrupt.

          You are no different from the other religions saying "this" makes me superior to you, giving me a right to decide what the rules over you are going to be!

          reply to this | link to this | view in chronology ]

        • icon
          Bergman (profile), 8 Sep 2017 @ 9:22am

          Re: Re: Re:

          Fun fact: We already have sharia law in the US. Specifically, our Founders borrowed useful bits from lots of different legal systems, attempting to make a more perfect union.

          Among them was sharia law. Ever heard of the concepts that people are innocent until proven guilty in a court of law, and that one person's word against another doesn't hold much legal weight without more witnesses or more evidence or both? Both come to us from sharia law.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 8 Sep 2017 @ 9:29am

            Re: Re: Re: Re:

            In all likely hood, there are multiple laws that secular individuals would like that have near 100% religious matches to as well.

            Not killing other humans is pretty much near universal.
            Not lying to others, that is near universal too.
            Not stealing... yep another near universal one as well.
            Treating people with respect... yep another near universal one too.

            Sadly it is just the human condition to use a religious or non religious excuse to not follow any of those 4 near universal rules in just about every religion when it suites their desires and needs.

            reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 7 Sep 2017 @ 8:29pm

      Re:

      How does that law not conflict with the First Amendment, again?

      reply to this | link to this | view in chronology ]

    • icon
      MDT (profile), 8 Sep 2017 @ 2:17am

      Re: AC Stupidity

      Another set of Conservative Lawmakers who wish this was a Theocracy instead of a Democracy. Forcing your religious beliefs on others is Unconstitutional.

      Not to mention it's pretty much exactly what ISIS wants to do, have a country run by religious law. So what you're really saying is that you're all for a CSIUSA, where if you violate church doctrine, you can go to jail or be fined.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Sep 2017 @ 10:17am

        Re: Re: AC Stupidity

        They refer to it as their "religious freedom" ... for them to discriminate as they so please.

        But - they do not seem to understand that their "freedom" stops where mine begins.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Sep 2017 @ 10:25am

        Re: Re: AC Stupidity

        We are neither a Theocracy or Democracy.

        If you can't get your facts straight, you should stop bitching about others fucking things up for ya.

        All laws, regardless of religious or non religious source is just one group of people forcing their ethical values upon another group.

        also, if this were a real democracy, then a theocracy is exactly what you will get if there are more religion people than secular people. do you not even think before running mouth? wait... you already answered the question before I even had to ask it!

        reply to this | link to this | view in chronology ]

        • icon
          MDT (profile), 8 Sep 2017 @ 1:02pm

          Re: Re: Re: AC Stupidity

          You should work on reading comprehension.

          I said some people would like this to be a Theocracy, not that we are.

          As to us being a Democracy, that's a bit of an old saw. A representative republic is a form of Democracy. We are not a Democratic Republic, that is true.

          You should probably read the history of our founders, they were religious, but wanted a government who could not dictate religion. And no, we do have more religious people than we do secular people, although that's close to changing, and we have had for all of our countries history (you should really actually do some research before you opening your mouth and proving ignorance).

          As of 2014, about 22.8% of US citizens were religiously unaffiliated, and that is a high mark. Athiest and Agnostic only account for about 7% of the US.

          Now, you've learned something.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 8 Sep 2017 @ 6:06pm

            Re: Re: Re: Re: AC Stupidity

            "A representative republic is a form of Democracy."

            No, it is not a FORM of democracy. This is just another corrupted term designed to get idiots like you to "think" democracy is okay.

            If you had said that our leaders were "democratically elected"... you would have some ground to stand on. But that does not a democracy make. Democracy must comprise of a people either directly or indirectly voting on the laws and rules of the law. While some States in America does have citizens voting on some laws and do practice some indirect democracy, the Nation as a whole does NOT either directly or indirectly create, destroy, or introduce for consideration, any laws.

            "You should probably read the history of our founders, they were religious, but wanted a government who could not dictate religion."

            I am well read, far more than 99.99% of my fellow Americans AND the politicians that rule over them. Yes, you are correct here! But America still abuses religious rights and with little repercussion. The founding fathers are on record as directly stating that a Democracy would only commit suicide and that Democracy is two wolves and one lamb voting what's for lunch. Perhaps you are not as well read as you should be?

            "And no, we do have more religious people than we do secular people,"

            I know this, which is why are said "if" there are more religious that non religious people that a democracy will become a theocracy. I was not limiting that statement to America, that applies to any country that is a "democracy", none of which exists at this time. So you can take your "no" back to the ball pit and toss it back in, it had no play here.

            " although that's close to changing,"

            I know... which is why America is leaning towards the desire to become an "actual" democracy, and while it never actually will, the push and desire Will start a war, because the nulla-theists are the exact same type of cloth that better than thou religious people are cut from.

            The "real" Christians, Muslims, Theists, and Secularists that started America understood the value of people having freedom of religion. The ignorant zealots of these lots are of a different mind. These are the elements of each of these groups that makes multiculturalism impossible to achieve. You just cannot make people that despises what another person believes coexist with each other. It is like asking antifa, kkk, police, and blm to be neighbors and dance with each other at the block party. Not happening, all are full of piss an vinegar towards the other.

            "As of 2014, about 22.8% of US citizens were religiously unaffiliated, and that is a high mark. Athiest and Agnostic only account for about 7% of the US."

            I believe, the amount of religiously unaffiliated is actually higher. People will claim affiliation with religions they have zero faith in only because that is what they know and instead of risking alienation from family and friends they just say that.

            People just like to get into groups as a survival instinct and stick to it, no matter how wrong their group is. We call those folks party voters. Every religion, group, and denomination has their version of them, including the secularists.

            "Now, you've learned something."

            did you learn anything?

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 8 Sep 2017 @ 8:17pm

              Re: Re: Re: Re: Re: AC Stupidity

              I learned you're a condescending racist asshole who thinks he knows a great deal more then he does. Happy?

              reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Sep 2017 @ 5:47am

      Re:

      Another federal judge following the constitution when lawmakers won't.

      Fixed that for ya buddy. No charge.

      reply to this | link to this | view in chronology ]

  • icon
    Unanimous Cow Herd (profile), 7 Sep 2017 @ 8:27pm

    This!

    This is one way I would consider patronizing a movie theater again. Beer + Star Wars/Trek = Please take my $

    reply to this | link to this | view in chronology ]

  • identicon
    Lawrence D’Oliveiro, 7 Sep 2017 @ 8:44pm

    Any Problem With Violence + Alcohol?

    Why is it always the sex?

    The old Anglo-Saxon double standard at work again, I see...

    reply to this | link to this | view in chronology ]

  • icon
    Narcissus (profile), 8 Sep 2017 @ 12:33am

    Of course...

    Ms. Page wrote: “I hate to bring this up, --- Brewvies is showing Deadpool. --- I know some people who have seen it.

    Yes, and I'm asking for a friend...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2017 @ 1:53am

    Deadpool sounds awesome.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2017 @ 5:22am

    Overinclusive...

    Are there any orchestras in Utah? Sounds like they'd be ok with the violins, but the sax would have to go.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2017 @ 5:55am

    "First Amendment Protects Cinema's Right to Show Unicorn Masturbation Scene While Serving Alcohol, Says Judge."

    My Little Pony sure has changed since I was a kid...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2017 @ 7:34am

    Drawing board

    State booze regulators will have to go back to the drawing board.

    No, actually, they don't have to. They could choose to, but it'd be a waste of time. Doing nothing is a fine choice.

    reply to this | link to this | view in chronology ]

  • identicon
    Anthony, 8 Sep 2017 @ 9:11am

    giddy

    Brewvies is actually celebrating the ruling tonight by showing Deadpool for free. I'll probably make up for the cost of that entrance fee with all the booze and food I'm going to be buying when I go tonight. Another win for MURICA!

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 8 Sep 2017 @ 9:27am

    Minor error in the artical

    X is not a movie rating. An X simply means "not rated." X-rated movies are simply movies that were not submitted to the ratings board (which costs money to do), and therefore cannot use the trademarked letter designations.

    X does not equal porn -- ALL movies are X-rated prior to being submitted to the ratings board, even ones that wind up being G or PG. Some porn studios use the XXX rating for porn, to distinguish their movies from those that are simply unrated, but not all porn studios do this.

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 8 Sep 2017 @ 11:10am

      Re: Minor error in the artical

      I don't know where you're from (or, for that matter, where Tim's from), but as far as the US goes, neither one of you is right.

      The X rating was an official MPAA rating from 1968 until 1990, used for films that were suitable for adults only. However, it wasn't trademarked, so many pornographic films that weren't rated by the MPAA advertised themselves as X-rated (or XXX-rated), and continue to do so; that's why the MPAA eventually replaced it with NC-17 (an official, trademarked rating).

      "X-rated" now has no official meaning, but it's generally used to refer to pornographic films. It isn't used as a general term for unrated films.

      reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 8 Sep 2017 @ 12:35pm

    "The reviews describe explicit sex scenes and male and female frontal nudity."

    Male frontal nudity? As in shirtless? Note that it doesn't say "full frontal nudity".

    Honestly, I'm struggling to remember any actual nudity in Deadpool. Maybe in the background of the strip club..?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2017 @ 4:34pm

    nice win for them, wish more movie theaters would serve adult fares. if we want to pay stupid prices to see a movie and drink a beer, two thumbs up in my book.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2017 @ 12:13am

    Raining rainbows

    I thought that Unicorns shat rainbows out their a/holes, not shoot them out their horns :)

    reply to this | link to this | view in chronology ]


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