Activist Legislators: No First Amendment in Bars
First smoking bans, now this:
[St. Charles, Missouri] is considering a bill that would ban swearing in bars, along with table-dancing, drinking contests and profane music.City officials contend the bill is needed to keep rowdy crowds under control because the historic downtown area gets a little too lively on some nights.
…
The proposal would ban indecent, profane or obscene language, songs, entertainment and literature at bars.
I suppose one could fashion some sort of watered-down (pun intended) liquor license variant of this inanity that might withstand some aspects of judicial review. Drinking games could be creatively labeled as reckless endangerment (“creative” is not a compliment in this context). And table-dancing might fall (pun intended) under the rubric of “safety statutes.” Having said that:
“Indecent, profane or obscene language, songs, entertainment and literature” are all constitutionally protected speech. Moreover, “indecent” and “profane” are too vague to be proscribed in a constitutional manner. It’s a slam dunk. How many hack politicians and city counsels (that’s “counsels” as in lawyers) can there be who don’t know basic First Amendment law? Apparently the answer is “at least some.”
Only true obscenity (i.e., XXX-rated smut pornography) is subject to any restriction at all, and only after having withstood a rather onerous free-speech test.* The fact that minors are generally not present in bars only reinforces the impermissibility of such proposals as the one in St. Charles (cf., the always-unconstitutional attempts to restrict video game sales to minors).
But step back for a moment from the specific constitutional questions. Are we — the Land of the Free — really at the point where we are electing politicians, even low-level yokel politicians,** who can with a straight face seriously propose banning cursing in a bar, for no other reason than because they think it might be a neat idea? Can hubris really meld so well with obliviousness?
If these are the kind of hopeless jackasses we are electing, then we desperately need for either many more, or many fewer, people to be voting. I’m not sure which.
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*Miller v. California, 413 U.S. 15 (1973).
**Or, for that matter, high-level yokel politicians. For example, because no federal action is involved in this fact pattern, under Ron Paul’s theory of neoconfederate constitutionalism, such a ban would be perfectly permissible. Like I said: “Land of the Free.” Or “States Rights.” Or something.
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