The ACLU opposes HSB 121, because we believe it will result in the local promulgation of unconstitutional ordinances across the state that go too far and reach constitutionally protected speech.
Right now, Iowa Code 728.5 prohibits indecent exposure (including exposure of genitals, female nipple, public hair, or anus) by any business required to obtain a sales tax. Specifically exempted is any “theater, concert hall, museum, or similar establishment which is primarily devoted to the arts or theatrical performances and in which any of the circumstances contained in this section were permitted or allowed as part of such art exhibits or performances.” (Iowa Code 728.5(3)). That exemption is important, because it aims to protect against the overbroad application of the obscenity law to protected activity that has literary, scientific, artistic, or political value.
As recognized in Mall Real Estate, LLC v. City of Hamburg (2012), Iowa Code 728.11 provides for state preemption of local ordinances attempting to regulate nudity ”in order to provide for the uniform application of the provisions of this chapter relating to obscene material applicable to minors within this state” preempts the local city or county regulation of obscene materials.
At the subcommittee meeting, the representative for the municipal association said that obscenity is not protected speech. However, not all nudity is obscenity. In fact, there is a three prong test for what constitutes obscenity as laid out by the U.S. Supreme Court:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment vales are adequately protected by ultimate independent appellate review of constitutional claims when necessary.
This bill follows the decision in the case Mall Real Estate, LLC v. City of Hamburg (2012). While the Iowa Supreme Court did not reach the issue of constitutionality of the Hamburg ordinance (whether it was so broad as to limit or chill protected speech, for example), it did not hold that the ordinance was constitutional. Rather, it employed discretion in disposing of the case without reaching the constitutional claims.
In fact, the ordinance likely was unconstitutionally broad, in that it would sweep up non-obscene art or theater involving nudity, that is guaranteed protection under the First Amendment the U.S. and Iowa Constitutions. In fact, under this ordinance, a science exhibit depicting early humans in a state of undress could theoretically be swept up, as could a number of popular Broadway and off Broadway shows.
This underscores the point of state level preemption; without it, we will end up with a whole host of unconstitutionally broad and vague ordinances throughout the state.
Cities may still regulate with reasonable time place and manner restrictions through zoning, as they currently do.