BOISE (CN) - A movie theater sued the Idaho State Police in Federal Court this week for trying to revoke its liquor license for showing the R-rated movie "50 Shades of Grey."
Meridian Cinemas sued the top two officers of the Idaho State Police and the chief of the state's Alcohol Beverage Control, also a state policeman.
It claims that a state law on obscenity in films is unconstitutional. In this case, Meridian says, the police threats dissuaded it from showing "The Revenant," the much-praised survival epic starring Leonardo DiCaprio.
"Frankly, we didn't want any more trouble, but that adds to the issue of [whether] free speech is chilled," Meridian's attorney Carter Preston told Courthouse News.
Idaho law 23-614, passed in 1999, prohibits movie theaters with liquor licenses from showing movies that depict "acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts," or "any person being touched, caressed or fondled on the breasts, buttocks, anus or genitals."
Violation is a misdemeanor punishable by up to a $300 fine per occurrence and/or up to six months in jail, plus suspension or revocation of their liquor license.
Meridian Cinemas runs a "mainstream" movie theater in Meridian, just west of Boise. Meridian, pop. 85,000, is Idaho's third-largest city. Like Boise, the state capital, it is in Ada County.
Since Meridian got a liquor license from the Idaho State Police in October 2013, undercover detectives have been sent to the movie house repeatedly to monitor it for obscenity.
"We received a call about 'The Wolf of Wall Street,'" attorney Preston said. "We were told not to show the movie because it was in violation of state law."
"The Wolf of Wall Street" was nominated for an Oscar award for Best Picture of 2013.
Meridian Cinemas says the state law chills speech and is clearly unconstitutional. It cites the Ninth Circuit ruling in LSO Ltd. v. Stroh, in which "it was clearly established that liquor regulations could not be used to impose restrictions on speech that would otherwise be prohibited under the First Amendment."
The Ninth Circuit ruled that "content-based regulation of expression by the government, even of indecent expression, is prohibited unless necessary to meet a compelling government interest," Meridian says in the complaint.
Meridian Cinemas says Idaho's statute does not meet that requirement: "Government defendants have not identified any compelling state interest that supports Idaho Code § 23-614 ... [which] is not narrowly tailored to achieve any compelling state interest."
The R-rated "50 Shades of Grey" is an erotic drama based on a sadomasochistic relationship between a college graduate and a business magnate. It has raked in more than $570 million worldwide.
Meridian Cinemas runs the Village Cinema & Backstage Bistro, a restaurant section where alcohol is served. Several theaters in Boise's greater Treasure Valley and beyond serve alcohol, including the Egyptian Theater in downtown Boise.
Carole Skinner has owned The Flicks in Boise for 31 years. She shows independent, foreign and art films. She has asked state lawmakers not to change her license to prohibit beer and wine from being taken from her café into the theater.
"They grandfathered me in, so people can still take beer and wine into the theater, but I was also cautioned by the ABC's former director, Dan Charboneau, to be aware of this statute, so I only book movies that are not in violation of that statute," Skinner told Courthouse News.
Asked if she thought the law effectively censors movies, Skinner said that though she could "see that point," she just "want(s) to stay out of trouble."
Idaho State Patrol spokeswoman Teresa Baker told Courthouse News that the police are just doing their job.
"Idaho State Police was recently informed that Meridian Cinemas LLC, an alcohol licensee, has filed suit against ISP for an administrative violation complaint that was issued by our Alcohol Beverage Control division," Baker said in an email. "Alcohol Beverage Control is tasked with enforcing Idaho's alcohol statutes as they are written. While we cannot comment on the specifics of this case, the statutes in place for the regulation and service of alcohol state that certain types of acts are prohibited in premises that are licensed for alcohol service. The display of sexual acts or nudity, whether live or on film, are prohibited when a premise is licensed for alcohol service. Whether or not the statutes are valid is a question for the courts to determine."
Carter said his client is being unfairly targeted.
"We are saying that the statute is unconstitutional because it does not articulate a significant policy interest," he said. "What we are really showing is non-obscene content.
"Hypothetically speaking, if this was the '70's, when they had porn movie theaters, there would probably be a place for this statute, but [now] it would be difficult to articulate a [significant] government interest in R- and PG-13-rated movies. The statute could articulate significant stated interest when it comes to truly pornographic content."
Sexual content prohibited by the law is common in movies today, Meridian Cinemas says in the complaint, citing Oscar-nominated films such as "American Sniper," "The Grand Budapest Hotel," "American Hustle" and "Les Misérables."
Preston said the police threats have forced Meridian Cinemas to censor itself.
"We took it upon ourselves to self-select, and decided not to show 'The Revenant.' Frankly, we didn't want any more trouble, but that adds to the issue of [whether] free speech is chilled."
Meridian Cinemas seeks declaratory judgment, an injunction to protect it from fines and revocation of its liquor license, and wants the police and ABC ordered to "terminate the administrative proceeding."
Attorney Carter is with Givens Pursley in Boise.
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