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Censorship and Sensibility

Idaho must answer for its speech-chilling statute

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The lawsuit filed Jan. 20 by Meridian Cinemas against Idaho State Police is about much more than Fifty Shades of Grey. It asks the U.S. District Court to weigh in on a particular form of sex censorship, with ISP's Alcohol Beverage Control being the fist that turns the screw.

Specifically, the suit targets Idaho Code 23-614, which shackles beer and wine licenses at select Idaho cinemas to Idaho's obscenity laws. What's obscene? According to Idaho Code, it might include "acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation and flagellation," and "any person being touched, caressed or fondled on the breast, buttocks, anus or genitals."

What does any of that have to do with a glass of beer or wine while watching the film? Pardon the pun, but there's the rub.

"Apparently you can drink all you want if a film is violent," said Shaakirrah Sanders, associate professor law at the University of Idaho. "To the extent that this code only targets a certain R-rated type of film, those depicting nudity or sexual content, I don't know why this statute is so narrow without a really good reason. It's unclear what the purpose is. Is there some fear that someone would watch these films, drink liquor and go rape someone? You've got to have a real connection to show that's a likelihood."

Some independent, locally owned theaters have operated in fear of ISP, turning away superb, albeit adult, films. In 2011, Michael Fassbender—this year's Oscar nominee for Steve Jobs—was getting some of the best notices of the year in Shame, but the NC-17 film couldn't find an art house home. In 2013, it was critically acclaimed NC-17-rated Blue is the Warmest Color that couldn't find a home. When Boise Weekly reported Blue wouldn't be shown at The Flicks or Magic Lantern, international media took notice—the story was picked up by Variety, The Hollywood Reporter and London-based The Guardian. Ultimately, The Flicks didn't screen the film, which was that year's Palme d'Or grand-prize winner at the Cannes Film Festival.

Both Shame and Blue is the Warmest Color featured some intense scenes of lovemaking and earned NC-17 ratings, but officers at Idaho's Alcohol Beverage Control Bureau have said repeatedly that a number of R-rated movies would also be in violation of the statute.

The complaint against ISP reads, "The following movies, nominated for the Academy Award for Best Picture in 2013 through 2015, portray acts or simulated acts of sexual intercourse or persons being touched, caressed or fondled on the breast or buttocks: American Sniper, The Grand Budapest Hotel, 12 Years a Slave, Dallas Buyers Club, The Wolf of Wall Street, American Hustle, Les Miserables, Silver Linings Playbook."

"Each of those films could potentially run sideways of the Idaho statute," said Jeremy Chou, partner at Givens Pursley LLP. "Caressing of the breasts? Touching the buttocks? Each of those movies have caressing of the breasts. PG-13 movies have that. It's an overly-broad statutory provision."

Fifty Shades of Grey has a bit more than caressing of the breasts. Even someone not intimately familiar with its content would acknowledge the pop culture phenomenon that followed the 2011 bestseller and the much-hyped 2015 movie adaptation, which attracted some of the worst reviews of the year.

Nonetheless, that was the film ABC Detectives Tyler Jussel and Gabriel Coleman attended at a 7 p.m. screening at the Village at Meridian on Feb. 26, 2015, sitting in the theater's VIP section for adults only. There they ordered a Blue Moon beer and a Bacardi rum with Diet Coke—according to court records, they consumed the drinks.

To the theater's credit, an employee told the detectives they had erred and asked them to leave the theater. Employees later confirmed a no-alcohol policy was strictly enforced at future screenings of Fifty Shades of Grey.

"Previous to that incident, Meridian Cinemas had received phone calls from Idaho State Police about another film, The Wolf of Wall Street [2014 Best Picture Oscar nominee]," said Chou. "They pulled that film from the VIP section as well."

Since then, Meridian Cinemas has had to conduct a "self-review" of all films, in fear of running afoul of the Idaho statute again.

"The problem is that with most content-based restrictions, one opinion may differ from another," Chou added. "Quite frankly the management at Meridian Cinemas is crossing their fingers."

Sanders, who instructs lawyers- and judges-in-the-making at the U of I law school, said there are "real concerns" about the Idaho statute "not just in what it doesn't allow, but how it's written."

"It has a very female focus to it with its reference to breasts. It could be read in a way that they somehow only struggle with the depiction of female body parts but not men's," she said.

The legal challenge to the Idaho statute may have some significant precedent to support it: the 9th U.S. Circuit Court of Appeals, which includes Idaho, has already shot down a similar statute in California, ruling it violated the First Amendment of the United States Constitution.

"And that's the strongest argument of all," said Sanders. "It seems to me that the Idaho statute has the effect of chilling expression protected by the U.S. Constitution. There's a huge reason why we have the First Amendment. It is supposed to protect you from chilling speech or censorship."

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