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Moral Authority: ISP Sting of Burlesque Triggers Another Lawsuit Against Idaho

"What we're talking about is freedom of expression, but we're also talking about Idaho using a liquor license as the heavy hammer."

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Sigmund Freud would have a field day. Idaho State Police is responsible for investigating thousands of crimes against people, property and society in the Gem State. With increasing regularity, however, ISP detectives have also gone undercover to watch burlesque shows or R-rated movies, often resulting in shutting down or suspending the liquor licenses of Idaho cinemas, theaters and restaurants for violating the Idaho obscenity statute, which prohibits pairing alcohol with sexually explicit material. The undercover stings have led to a string of embarrassments for ISP, as venues have won a number of legal challenges—all defended at taxpayer expense—against the agency.

"What we're talking about is freedom of expression, but we're also talking about Idaho using a liquor license as the heavy hammer in government control of that expression," said attorney Deborah Ferguson, of Boise-based Ferguson Durham, PLLC.

ISP Alcohol Beverage Control has swung that "hammer" on several occasions: In February 2015, a pair of undercover officers ordered a Bacardi and Coke and Blue Moon beer while watching Fifty Shades of Grey at the Village Cinema in Meridian. In March 2016, undercover detectives ordered alcoholic beverages and watched a burlesque show at the Visual Arts Collective in Garden City.

Both incidents triggered possible liquor license suspensions, which were met with lawsuits challenging the constitutionality of the punishment. In each case, ISP was represented in court by the Idaho attorney general's office, admitting defeat after the traditionally conservative Idaho Legislature intervened.

The 2016 Legislature voted to untether liquor laws from the obscenity statute, no longer threatening movie theater owners with licenses suspension if they show adult-themed films. In effect, it upended the intent of the sting at Village Cinema. The Idaho Legislature revisited the issue this year, when it again amended Idaho Code banning explicit live performances at venues where alcohol is sold, by adding an exemption for presentations with "literary" or "artistic" value. That, in turn, made the enforcement action at Visual Arts Collective moot.

"I think all of us would have a very different definition of what's considered literary or artistic," said Senate Minority Leader Michelle Stennett (D-Ketchum) during the debate in March.

The debate is far from over, though. A recent lawsuit filed against ISP alleges restriction of speech, which is prohibited by the First Amendment of the U.S. Constitution, following another burlesque bust—this time on Aug. 29, 2015 at an Adams County restaurant.

Dinner and a Show

The flier for the Saturday night show at The Intersection in New Meadows promised a choice of prime rib or salmon and a live burlesque show. The price was $35 per person and restricted to patrons 21 years of age and older. Reservations were required for what would be a sold out show; and those reservations included ISP detectives Gabriel Coleman and George Szeles.

"Nearly 80 people were there, nearly all of them couples: folks from the school board, my parents, my husband's parents and a number of tourists in the area for the summer," said Shannon Fairchild, who owns The Intersection with her husband, Levi Burden.

Drive through New Meadows, which sits at the crossroads of Idaho Highway 55 and U.S. 95 a few miles south of McCall, and you can't miss The Intersection. Fairchild and Burden said they invested their life savings in 2013 to buy what had been previously known as Sagebrush BBQ Steakhouse Saloon. Fairchild has since been elected to the New Meadows City Council and Burden serves on the local school board. The Intersection employs 13 locals, hosts fundraisers throughout the year, and serves free holiday meals to the homeless and hungry. While its smokehouse barbeque pushes out ribs, steaks and prime rib, The Intersection hosts live bands on its indoor and outdoor stages during dinner hour.

On Aug. 29, 2015 undercover lawmen Coleman and Szeles walked into The Intersection with notebooks in hand. The detectives' official report (case No. 15ABC60), reads like a 1950s-era Dragnet episode: "Detective Szeles made reservations to attend the burlesque show at the licensed premise," they wrote. "The female employee told Det. Szeles to be prepared for a 'risque' show."

Boise-based Glitterati Gals Burlesque was the featured attraction, with five performers on stage: Phoenix Fatale, Belle Fast, Indica Blaze, Dayla Muerte and Glitterati LaReaux.

"I remember that the energy was really high from the second we got there," LaReaux said. "That town was super awesome. Very polite, super respectful and they treated us like family."

Coleman and Szeles weren't interested in family matters. Instead, they wrote, "Aside from pasties to cover the nipples and areolas, each performer exposed both her breasts entirely." After ordering a beer each, they concluded, "All of this conduct equates to conducting, permitting and encouraging prohibited acts in violation of Idaho Code 23-614(1)(a)."

It wasn't until early November that Fairchild received a an official complaint from ISP.

"I've seen these before from Idaho State Police," said Ferguson. "It says your liquor license may be revoked or suspended and you have something like 20 days to answer."

Fairchild said she was in a panic, and quickly hired a local attorney.

"Idaho State Police wanted something like $10,000 and for us to close for 10 days," she said. "But we don't have that kind of money. Our attorney advised us to negotiate for us to be shut down longer to get the fine down. We paid $5,000 and we shut down for 15 days. Our hands were tied. Our other option was to try to fight them and possibly lose our liquor license."

About the same time Fairchild paid the fine and temporarily closed her business, Ferguson had been brought in as co-counsel on the legal challenge from the VAC against a similar threat from ISP after a burlesque show hosted at the Garden City venue in March 2016. But a permanent injunction put the legal proceedings on hold long enough for the 2017 Idaho Legislature to intervene and amend Idaho Code to prevent similar threats in the future.

"I was up in New Meadows, reading the newspaper about all of this, and that's when we got in touch with Deborah Ferguson," said Fairchild.

Ferguson filed suit against ISP, this time in U.S. District Court, declaring there had been a First Amendment violation and asking that the fine paid by Fairchild and Burden be returned—in addition to compensation for income lost during the temporary business closure. More important, the suit asked the federal court to "permanently restrain and enjoin [Idaho State Police] from enforcing the challenged statute."

"Yes, there have been amendments. But we're talking about possible future actions, as well," said Ferguson. "This is a suppression of the First Amendment right of a speech expression.

And that is particularly important to the current members of Glitterati Gals Burlesque.

"I was very excited to see that the issue with the VAC had been resolved," said performer Phoenix Fatale. "But we hadn't heard about the action involving The Intersection."

Fatale, who works as a Boise emergency room nurse using her real first name, Brandy; and Glitterati LaReaux, whose real first name is Joselyn and is an in-home caregiver, said their show is more about "creativity and freedom of expression."

"And there's a difference between stripping and burlesque," said LaReaux. "Neither should be stigmatized; but a stripper sells an idea. We're telling you a story."

"Our most frequent fans are couples," Fatale added. "Yes, skin is being revealed. But we really get people who are there for the sexual aspect. We tell you a story in a sensual way."

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