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Idaho's Bar Tab from Its Ill-Fated Cinema Liquor License Sting

'Popular speech doesn't need to be protected'

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The story had it all: sex, alcohol, pop culture, politics. So when the state of Idaho was slapped with a lawsuit over the tight leash it held on alcohol consumption at R-rated movies, media pounced. The Idaho Legislature did, too, quickly crafting new legislation to address the issue.

In the wake of the Meridian Cinemas dba Village Cinema vs. Idaho State Police lawsuit and Idaho House Bill 544 becoming law, it's important to note two things: No. 1, the lawsuit is far from over and, No. 2, the underlying—and more important—debate at hand involves government overreach doing irreparable harm to a private business and protections of free speech guaranteed under the United States Constitution.

"The case involves the application of very broad and fundamental principles to rather discreet and salacious circumstances. So yes, that seems to always generate interest," said attorney Preston Carter, of Boise-based Givens Pursley LLP. He represents the Village Cinema owners, who were contacted by ISP Alcohol Beverage Control officers warning them about serving adult beverages at certain R-rated films.

"As a result, our clients started... well, let's say self-censorship. That's the right phrase. It's a strong phrase, but it's the right phrase," Carter said.

But the warnings kept coming. In a February 2015 sting operation, two undercover ABC detectives ordered a Bacardi and Diet Coke and a Blue Moon beer and, while watching an evening screening of Fifty Shades of Grey, took copious notes detailing each simulated sex act and chronicling how long each one lasted:

"In this scene, the male and female both removed all their clothing and were completely naked. The scene lasted three minutes," the notes read.

"The male lifted the female's skirt up onto her back and pulled her panties down below her buttocks. The male slapped the female's bare buttocks multiple times and appeared sexually stimulated by his conduct." That scene was approximately one minute long.

"With the female on her back, the male placed an ice cube in his mouth and began to touch and/or caress the female's body, including her bare breasts. The scene lasted two and a half minutes."

Critical consensus of Fifty Shades of Grey held the film was a dud. The New York Times called it "terrible" and the Guardian described it as filled with "daytime soap performances."

"There's a good saying: 'Popular speech doesn't need to be protected,'" said Carter. "Notice that they didn't come after Village Cinema for showing 12 Years a Slave."

Carter was referring to the 2013 Oscar winner that earned an R rating for extreme depictions of rape and sexual cruelty but told the true story of a free black man sold into slavery.

"That film wasn't tested. It was popular. It won the Best Picture Oscar," said Carter. "But the First Amendment doesn't make a distinction. Those sorts of controversial, uncomfortable subjects have to be allowed."

As written, Idaho Code 23-614 shackled beer, wine and liquor licenses at select Idaho cinemas to specific words prohibiting films showing "acts or simulated acts of sexual intercourse" and "any person being touched, caressed or fondled on the breast, buttocks, anus or genitals."

Captain Russ Wheatley, the man in charge of ISP's ABC unit, says in retrospect, the old law overreached.

"The new legislation passed by the Idaho Legislature earlier this year removed the 'prohibited acts' section because there were some concerns that it was a little over-broad," Wheatley said. "What that means for a movie theater now is that we want to make sure we're protecting constitutional rights here."

Wheatley added the revised legislation still ties liquor licenses to Idaho's obscenity laws, "which already existed," but when asked if the lawsuit was over and done with, he said, "I'm not going to talk about that particular point because I can't."

Carter confirmed the lawsuit is still pending, and the case is "still at its absolutely earliest stage." It turns out Village Cinema's liquor license is secure, but theater operators say they suffered significant economic damage due to the previous threats from ABC and self-censorship.

"That includes lost revenues caused by [ABC's] conduct, not showing some movies, shifting movies into smaller theaters, having fewer screenings, the expense of pre-screening films and, of course, the lost sale of alcohol," said Carter, adding his client also expected to recover attorney's fees from the state of Idaho. "We're in discussions right now. I can tell you that there is a temporary stay right now, but that expires on July 1."

In other words, while there may not be a sequel, this particular show is far from over.


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