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Courthouse News Service Courthouse News Service

Idaho Caves on Enforcing Obscenity Law

BOISE (CN) — Artists in Idaho claimed a victory against government censorship this week when a federal judge granted a permanent injunction against enforcement of a 40-year old law that prohibits simulated sex acts in performances with "serious literary, artistic, scientific or political value."

Though the issue appeared to have been settled by the landmark U.S. Supreme Court cases Roth vs. United States (1957), reaffirmed in Miller vs. California (1973), the Idaho case was complicated by the fact that the theater served liquor.

Anne McDonald, owner of the Visual Arts Collective in Garden City, was fined and her license was suspended after undercover Idaho State Police officers bought drinks and watched McDonald's burlesque routine. Police conducted the sting in March, enforcing an Idaho liquor law.

McDonald sued the State Police and the two detectives involved in the sting, claiming violations of the First and 14th Amendments.

On Sept. 15 she submitted an urgent request for an injunction, so the Alley Repertory Theater could perform "The Totalitarians," a widely performed political satire about a Roller Derby star running for office in Nebraska.

The State Police caved, and on Monday Chief U.S. District Judge B. Lynn Winmill signed the parties' joint request for the permanent injunction.

Winmill, however, said the state's case against the Visual Arts Collective will remain open, though stayed, until the end of the Idaho Legislature's 2017 session, "for the purpose of allowing sufficient time for the Idaho Legislature to amend Idaho Code § 23-614(1)(a)-(d)."

He enjoined the state from enforcing section (1)(d), which "prohibit[s] simulated sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or other sexual acts, against persons operating theaters, concert halls, art centers, museums, event centers, or any other establishments or venues where theatrical or artistic performances are typically offered, and when considered as a whole, and in the context in which it is used, the performances that are presented are expressing matters of serious literary, artistic, scientific, or political value."

However, the state may continue to enforce the other sections of the law.

Deborah Ferguson, one of four attorneys in the case, said the state agreed to the injunction, in part, because it didn't want to fight the issue in court.

"The state decided rather than responding with protracted litigation, they would agree to a permanent injunction that would be set into place and end the censorship," she told Courthouse News on Wednesday. "Under the language, we agreed that the Idaho State Police would not enforce the state law affecting artists' venues."

Ferguson said the state has an interest in changing the law, as Winmill permits.

"The injunction will stay in place allowing time for the state Legislature to see if they want to change the language or do something different," she said. "Whatever it is they are going to do, we will look at it very closely in terms of our client's rights under the First Amendment. If it passes muster, then we will dismiss the case. If it doesn't, we will have the option to ask that the stay be lifted to revisit [the case]."

Ferguson added: "There are probably legislators that would be interested in the issue considering the state is under injunction from enforcing the law. I would expect they would want to straighten this out and avoid further litigation."

McDonald expressed relief.

"While I still hope for a day that the gender of an unclothed breast is insignificant, I am pleased that we have come this far so quickly and artistic expression is more open to the artists' discretion," she said in a statement. "I am thrilled the state has taken this matter seriously. I am utterly relieved that I no longer have to censor my work according to archaic, vague laws. I am so grateful to our legal team, their commitment to the first amendment and equal rights, and their tireless work on this matter. I know that artists, specifically burlesque performers, around the state will be overjoyed."

The Idaho State Police said that a media representative was not available Wednesday evening.

Ferguson is with Ferguson Durham, in Boise.

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