9th Circuit upholds a 2-foot limit on lap dancing

Gammoh v. City of LaHabra is an opinion, which the 9th Circuit originally issued in January, but has now amended and refused to grant a petition for en banc rehearing.  In the original opinion, the court upheld the district court dismissal of the plaintiff's lawsuit, whcih challenged a local ordinance imposing a 2-foot limit on lap (or, as the court called them, one-on-one) erotic dancing.  The court rejected appellant's various First Amendment and constitutional takings challenges.

The opinion itself seems like a reasonable interpretation of existing law, but the existing law itself does not sit well with me.  There is a long line of cases that a content-based restriction on adult businesses / dancing requires only an intermediate standard of review if the restriction is combating secondary effect of adult business.  Typically, local municipalities submit volumes of "studies" (declarations from cops, the infamous 1986 Ed Meese study on pornography, materials about dangers of sexually-transmitted disease), which show that adult businesses lower property values, depress economic development, and increase crime levels.  The courts accept those at face value, and they really should not.  Municipalities are usually very good about zoning in such a matter, as to put the adult businesses in the most economically-depressed, crime-ridden areas.  The City of La Habra, one of the poorest cities in Northern Orange County, is a good example of that tactic.  So, in reality, you can have a Vatican Embassy and a shrine to Mother Theresa in LaHabra, and the property values would be down and crime levels would be up.  And if the City Fathers in LaHabra are really looking to improve morale, they should try banning WalMart and Blockbuster Video.

Also, the judges who write these opinions obvously have never experienced a lap dance:)  Otherwise, I do not think the court would written the following: “While the dancer’s erotic message may be slightly less effective from [two] feet, the ability to engage in the protected expression is not significantly impaired.”