UPDATED: Idaho State Police Responds to Settlement of VAC/ACLU Lawsuit 

  • Will Eichelberger
UPDATE: Sept. 30, 11:20 a.m.:
The Idaho State Police has issued a statement regarding the Sept. 28 settlement of a lawsuit against the agency over a Gem State statute that shackles obscenity laws to liquor licenses.

"The Idaho State Police (ISP) and the Attorney General's Office worked with the attorneys representing Visual Arts Collective to resolve the current case brought against the Idaho State Police, Alcohol Beverage Control Division. We are committed to working with the Idaho Legislature to correct any deficiencies in Idaho Code, so we can effectively uphold the Idaho Constitution and related codes."
During the 2016 Idaho Legislature, the list of acts prohibited under the terms of alcohol service licenses was amended to allow cinemas screening potentially obscene or offensive films to serve beer, wine and other alcoholic beverages. The changes, however, did not apply to live performance venues like the Visual Arts Collective.

ORIGINAL POST: Sept. 28, 3:54 p.m.:
A settlement has been reached in the latest challenge to an Idaho law linking liquor licenses to obscenity.

"Idaho has statutes that authorize morality police, and it may have been that 50 years ago those laws were upheld as constitutional, but Idaho has to move to the 21st century," said ACLU-Idaho Legal Director Richard Eppink.

The suit was filed Sept. 15 by ACLU-Idaho; Ferguson Durham, PLLC; and Van Valkenburg Law, PLLC, on behalf of the Visual Arts Collective, Anne McDonald and Alley Repertory Theater. It alleged the Idaho State Police Alcohol Control Board had infringed on the First Amendment when it slapped VAC with an $8,000 fine and 20-day suspension of its liquor license following a burlesque performance by McDonald—aka Frankly Frankie—in March. 

The aim of the lawsuit was to win an injunction against enforcement of the law (Idaho Code 23-614), prior to the performance of Alley Repertory Theater's production of The Totalitarians, beginning Thursday, Oct. 13—a play the plaintiffs worried would place VAC in violation of the law if the venue were to serve alcohol.

It also sought to strike down the law that has long caused alcohol-equipped cinemas to avoid screening certain films featuring nudity or sexual content—notably in 2013, when The Flicks chose not to screen critically acclaimed Blue is the Warmest Color for fear of violating the terms of its beer and wine sales license, and again in 2015, when Meridian Cinemas screened Fifty Shades of Grey while serving alcohol. During the 2016 session of the Idaho Legislature, the law was changed to allow exceptions for cinemas screening risque films while serving alcohol—but not venues like VAC.

McDonald said the settlement came as a relief.

"It means I can proceed and not have to censor myself," she said. "Within the terms of what I do anyways, I don't have to be paranoid of breaking a law I don't understand. I can perform as I see fit."

Idaho State Police officials did not respond to a request for comment.

Under the terms of the settlement the state of Idaho has agreed to a permanent injunction that prevents enforcement of the section of code connecting liquor licenses to obscenity and VAC will receive the value of any fines it incurred as a result of the violations against the law found there in March. Meanwhile, the lawsuit will remain active to allow the Idaho Legislature to respond.

"Certainly, if [the Legislature] continue[s] to have restrictions that lead to the censorship of art in Idaho, especially if it is based on the content of that art, that's going to be something we'll have to litigate further in this case," Eppink said.

The case has been closely watched in the national media. Until Sept. 28, Idaho was one of a handful of states where liquor licenses and obscenity laws were linked, though a similar law remains in effect in Utah. Eppink said Wednesday's settlement will likely cast ripples nationwide.

"We're seeing this come up in courts across the country and, by and large, these statutes are being struck down," he said. "I think in addition to the Idaho Legislature, I imagine other states may take notice."
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