Businesses licensed to serve alcohol during live performances depicting sexual acts will no longer face consequences from Idaho State Police under a newly reached agreement.
The American Civil Liberties Union of Idaho, along with several other Boise attorneys representing artists and artistic venues, said the lawsuit settlement Sept. 28 marks an end to censorship of art throughout Idaho.
“The state chose to settle the case because the 40-year-old statute is significantly flawed and violated clear constitutional rights of these artists and venues,” said Deborah Ferguson, whose law firm prevailed in striking down Idaho’s same-sex marriage ban in 2014, in a prepared statement.
The agreement allows the state to uphold portions of the law that are constitutional, said Brian Kane, chief deputy for Attorney General Lawrence Wasden. The law in its current form would likely not be defensible in court, Kane added.
“The goal is to defend what’s defensible,” he said.
As part of the settlement, both parties have agreed to put a pause in the ongoing lawsuit to wait and see if the 2017 Idaho Legislature will amend the Idaho law that particularly bans businesses serving alcohol during any live performances that depict simulated sex or masturbation.
“The Legislature has been challenged to do the right thing,” ACLU-Idaho attorney Ritchie Eppink said. “We will be back in the spring.”
According to the 28-page lawsuit filed just two weeks ago, two undercover Idaho State Police detectives were served alcohol while watching a burlesque show performed by Anne McDonald at Boise’s Visual Arts Collective in March.
The ISP then filed a complaint alleging that the art gallery failed to prevent the exposure of some parts of the female performers’ bodies in violation of state law.
Earlier this year, Idaho lawmakers repealed a similar section of the same law for Idaho movie theaters after a theater sued when its liquor license was threatened for showing “Fifty Shades of Grey” while serving alcohol. The Republican-dominated Legislature did not repeal the ban on live performances.
“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,” McDonald said in a prepared statement. “I am thrilled the state has taken this matter seriously.”