Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
On Appeal Mixed Outcome
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Beverly Hills Suites and its principal, Sharok Jacobi, brought a civil claim in the U.S. District Court of Connecticut against a police officer, the police chief and Windsor Locks city, Connecticut. Plaintiffs alleged, inter alia, the arrest of Jacobi by the city law enforcement and the subsequent temporary closure of their club violated the First Amendment right to free speech. From 2007 to 2010, the hotel and its club were rented to host various events, such as rap music concerts, and private dance parties. The police initial investigation of the hotel began after neighboring residents complained of loud noises and seldom fighting within the hotel premises. Later, undercover investigations revealed evidence of nudity and sexual acts occurring in public areas of the hotel. In November 2008, Jacobi was arrested and criminally charged for commission of obscenity and public indecency in violation of the Connecticut General Statutes.
Plaintiffs contended that the defendants violated their customers’ right to free speech 42 U.S.C. § 1983 by harassing, intimidating, arresting, threatening to arrest patrons, potential customers, and contractors of the hotel, which caused it to lose substantial revenue. The district court dismissed their claim, reasoning that the alleged evidence of sexual activity observed by the law enforcement inside the hotel, including oral sex, masturbation, and the exposing of and fondling of genitals “is not constitutionally protected speech” under the First Amendment. It specifically found that events taking place at the hotel “involved no stage or performance aspect (with the exception of the fact that someone was taking photographs), and it was not accompanied by any advocacy of a particular lifestyle.” The court also ruled that the plaintiffs lacked any evidence that the temporary closure of the hotel for violation of fire safety and liquor codes had infringed its customers’ right to attend concerts.
The appeal of the court’s judgment is currently pending.
From 2007 to 2010, Beverly Hills Suites, located in the town of Windsor Rocks, Connecticut, hosted nighttime parties, rap music concerts, swingers’ parties, and other events in addition to renting rooms to patrons. After series of loud noises and fighting occurred within the hotel premises, the Windsor Locks Police Department conducted several investigations. Later, an undercover investigation revealed evidence of nudity and sexual activity, including oral sex, masturbation, and the exposing of and fondling of genitals inside the hotel club.
On November 13, 2008, an arrest warrant was issued for the hotel’s principle, Sharok Jacobi, charging him with the criminal acts of obscenity and public indecency in violation of the Connecticut General Statues §§ 53a-9, 53a-194, 53a-9, and 53a-186. Later in 2010, the hotel was forced to temporarily close for violation of fire safety codes.
The hotel and its principal brought a civil action in the U.S. District Court of Connecticut again a police officer, the police chief, and Windsor Locks city. Among other grounds, they claimed that their customers’ right to free speech under the First Amendment were violated by the police’s harassment, intimidation, arrest and threat to arrest patrons, potential customers, and contractors of the hotel, which caused it to lose substantial revenue.
U.S. District Judge Michael Shea delivered the judgment.
To prevail on a First Amendment claim asserted under 42 U.S.C. § 1983, the court required the plaintiffs to prove by a preponderance of evidence that “(1) the expression at issue was constitutionally protected, (2) the alleged retaliatory action adversely affected his constitutionally protected expression, and (3) a causal relationship existed between the constitutionally protected expression and the retaliatory action.” [p. 21] The court also required the plaintiffs to show standing in order to challenge the constitutionality of the defendants’ actions.
First, the court found plaintiffs with minimum standing requirements. It held that while the hotel itself did not initiate or promote swingers’ events, but rather, rented space to host them, its alleged injury of revenue loss was fairly traceable to the law enforcement’s conduct and that the hotel met the prudential standing because its customers’ free speech was at the heart of their business relationship with the hotel. See Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1252 (5th Cir. 1995) (“a business . . . may properly assert its customers’ First Amendment rights where the violation of those rights adversely affects the financial interests or patronage of the business.”).
After finding the plaintiffs’ constitutional standing, the court addressed whether the acts of defendants, namely harassment, intimidation, and the arrest of the hotel’s principle violated the First Amendment right to free speech. It dismissed the claim, reasoning that the sexual activity observed by the law enforcement inside the hotel, including oral sex, masturbation, and the exposing of and fondling of genitals “is not constitutionally protected speech.” [p. 22] The court cited 832 Corp. v. Gloucester Twp., 404 F. Supp. 2d 614, 626 (D.N.J. 2005), in which the District Court of New Jersey held that “[h]aving sex, without more, is not expressive conduct protected by the First Amendment.” In the present case, the court found that swingers’ events involved “no stage or performance aspect (with the exception of the fact that someone was taking photographs), and it was not accompanied by any advocacy of a particular lifestyle.” [p. 22]
With respect to concerts alleged to had been canceled or delayed, the court did not find any evidence indicating that the defendants had indeed infringed the speech right of the concert goers. The records showed Connecticut’s Liquor Control Division and the Fire Marshal closed down the bar and at hotel on several occasions, and not the defendants.
Based on the foregoing reasons, the District Court of Connecticut dismissed the plaintiffs’ First Amendment claim.
The appeal of the court’s judgment is currently pending.
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