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Stripper Statute Struck Down

The Las Vegas City Council wanted to draw a line between legitimate exotic dancing and borderline prostitution.  They wanted to prevent strippers from, frankly, dry-humping patrons.  Thus, they enacted this statute:

"No attendant or server shall fondle or caress any patron and no patron shall fondle or caress any attendant or server."

Yup -- that's it.  Accordingly:

The law that defines what strippers can and can't do during lap dances in Las Vegas is unconstitutional, a judge ruled Friday.

District Court Judge Sally Loehrer affirmed a lower court ruling that as many as five misdemeanor criminal cases filed against strippers in Las Vegas should be dismissed because city code is too vague and unenforceable.

Loehrer said she believes the strip club industry needs to be regulated, but the law as written is flawed.

"I don't think the law is clear enough," Loehrer said, adding, "I don't think it's possible for the law enforcement to know what is allowable and what is not."

The full story is available here.  In striking down the law, the judge relied on the void-for-vagueness doctrine, which I've summarized for you.

Over a century ago, the Court outlined the policy of what would become the void-for-vagueness doctrine: 

“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government.”

United States v. Reese, 92 U.S. 214, 221 (1875).

The void-for-vagueness doctrine has remained vibrant, and “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982).   The void-for-vagueness doctrine protects a citizen from “standardless sweep[s] [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Smith, supra, 415 U.S. at 574   The aim is also to avoid giving police, prosecutors, and juries undue discretion in defining what conduct is prohibited.

It is not enough for a criminal defendant to boldly assert that a statute is vague. See Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).   All language is, to some degree and to some people, vague.  See   Indeed, very respected and credible philosophers have theorized that the only language lacking vagueness is the language within each person’s own mind: Your own private language.   Instead of merely shouting that statutory language is vague, a criminal defendant must show that the statute so vague that a reasonable person would not know what conduct is prohibited. Kolender v. Lawson, 461 U.S. 352 (1983).

Here the judge noted that "fondle" and "caress" were indefinately certain.  What if the stripper and patron (maybe we should call them "johnnys") held hands, or brushed up to each other?  What if the johnny put $5 into the stripper's panties? 

Too many unanswered questions means that there would be discretionary arrests, prosecutions, and convictions.  As such, the law had to go.

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