Cops Enforce Antiquated Law Prohibiting Alcohol and Indecent “Activities”

Philip Janquart | Courthouse News Service

An artist claims in a federal lawsuit that a vague and antiquated Idaho liquor law censures artistic expression and unconstitutionally chills free speech.

Anne McDonald, owner of the Visual Arts Collective in Garden City, Idaho, claims she was forced to pay a fine, agree to a suspension and tone down burlesque and other performances following an undercover sting operation.

The Visual Arts Collective is described in court papers as a “mixed use contemporary fine art gallery … committed to presenting exhibitions and events for artists working in visual and performance art, film, music and theater.”

In March 2016, two undercover detectives for the Idaho State Police, which controls and enforces the state’s liquor laws, allegedly walked into the collective, bought alcoholic drinks and then observed McDonald during a Burlesque performance.

She received an administration violation notice the following May.

The complaint sought sanctions against McDonald and the Visual Arts Collective, threatening to revoke her alcohol-beverage license.

“The one count administrative complaint alleges that…the employees of the Visual Arts Collective did nothing to prevent the exposure to viewing by others of the portion of some of the female performers’ breasts below the top of the areola or the cleft of their buttock in violation of Idaho Code Section 23-614(a),” according to a 28-page lawsuit filed Thursday in Idaho Federal Court.

The statute prohibits the sale of alcohol where indecent “activities” or “representations” are conducted. Violation of the law comes with up to a $300 fine and up to six months in jail.

“She agreed to a fine and a 20-day suspension in lieu of revocation,” said Richard Eppink of the American Civil Liberties Union of Idaho, one of McDonald’s attorneys.

McDonald says the statute is vague and that the state should not be allowed to use liquor laws to limit free speech.

“They impose restrictions on freedom of expression despite that the Ninth Circuit held more than a decade ago that it was already ‘clearly established that liquor regulations could not be used to impose restrictions on speech that would otherwise be prohibited under the First Amendment,” the complaint states.

Eppink said, “The language of the statute is overly broad in light of the Ninth Circuit’s decision,” referring to the 2000 ruling in LSO Ltd. v. Stroh.

A similar lawsuit was filed in January 2016 by Meridian Cinemas LLC, which was fined by the Idaho State Police for showing the controversial film “50 Shades of Gray” and “The Revenant” in its VIP theater where alcohol is served.

The state said the movies “depict sexual intercourse” and “genital fondling” in violation of state liquor laws. The case was dismissed following an undisclosed settlement agreement between the parties.

The statute was subsequently updated to “refer to modern constitutional standards — but only as to films and still pictures,” according to McDonald’s complaint.

She claims Idaho Code Section 23-614 is so antiquated and vague that it prohibits performances and physical displays akin to some of history’s most well-known figures.

“The statute casts an incredibly wide net that captures Tony-award winning plays, acclaimed ballets, and even gestures as staid and familiar as ‘Elvis’ gyrating hips’ within its vague prohibitions,” the lawsuit states.

The Idaho State Police did not immediately return a request for comment made Monday night.


The Visual Arts Collective, McDonald and the Alley Repertory Theater Inc. are the plaintiffs in Thursday’s complaint.

The named defendants include Director of the Idaho State Police Col. Ralph Powell, Deputy Director Col. Kedrick Wills, Bureau Chief of the Alcohol Beverage Control Capt. Russell Wheatley, Detective George Szeles and Specialist Jeremich West.

The plaintiffs allege violations of their First and Fourteenth Amendment rights to free speech and equal protection.

They seek a temporary, preliminary and permanent injunction barring law enforcement from enforcing the challenged statute. They want the court to strike down the statute in its entirety to prevent the chilling of free speech and to declare Idaho Code Section 23-614 unconstitutional. Their complaint also seeks costs and attorneys’ fees.

The plaintiffs are represented by Eppink, Deborah Ferguson and Craig Durham of Ferguson Durham in Boise, and Jack Van Valkenburgh in Boise.

Published by Courthouse News Service.