COLUMBIA — Scott Bergthold makes his living traveling around the country to fight for regulations on the adult entertainment industry. One of his recent successes came here in Missouri.
There are a number of court precedents that would explain the behavior of the courts with respect to cases restricting sexually oriented businesses.
In 1981, a U.S. Supreme Court Case, Schad v. Borough of Mount Ephraim, ruled that nude dancing is protected expressive conduct. The Schad decision makes it OK to restrict adult businesses through zoning, but not to ban them entirely.
The Supreme Court was called upon again in 1991 for Barnes v. Glen Theatre Inc., which established that nudity is not exactly free speech. The decision made it clear that nude dancing is expressive conduct but said government entities had the right to regulate the time, place and manner of the conduct.
"All it takes is a shift in judges," said MU journalism professor Sandy Davidson, who is a lawyer and an adjunct member of the law school faculty.
In 2000, the Supreme Court in Erie v. Pap's A.M. kept the precedent that public nudity is expressive conduct. The court held that an ordinance banning public nudity does not hinder a person's right to free speech.
Provisions of the Missouri bill:
- Sexually oriented businesses must close between midnight and 6 a.m.
- Total nudity is banned at all times.
- New sexually oriented businesses will have restrictions on where they can establish.
- A seminude employee of a sexually oriented business must be at least 6 feet away from patrons at all times.
- Alcohol is banned at sexually oriented businesses.
- All patrons must be 18 or older.
Based in Chattanooga, Tenn., Bergthold's law firm carries the Web address of adultbusinesslaw.com. The website states his mission clearly: He "focuses on the drafting and defense of adult business regulations in state and federal courts.”
Bergthold is making a name for himself among people on both sides of the debate over sexually oriented businesses. To win his battles, he strives to prove that strip clubs, sex shops and other such businesses have negative effects on society.
Recently, Bergthold defended a new Missouri law that took effect Aug. 28 and puts some hefty restrictions on adult businesses in the state.
The Missouri attorney general's office hired Bergthold, citing his "specialized expertise," to defend the law against a lawsuit filed by Passions in Columbia and by other adult businesses in Missouri, according to a July 28 letter to him from Attorney General Chris Koster and Deputy Attorney General Joe Dandurand. The state is paying him $150 an hour, or up to $7,500 for no more than 50 hours of work under his current contract.
Thus far, Bergthold has argued successfully against a request for an injunction preventing the enforcement of the law. The injunction, filed by adult businesses across Missouri, would have placed a temporary restraining order on the law. The matter was appealed, and struck down again in the Missouri Court of Appeals Western District. A hearing on the lawsuit is scheduled for Nov. 4 in Cole County Circuit Court, and a pretrial conference is set for Feb. 1.
Angelina Spencer, executive director of the Association of Club Executives, has followed Bergthold’s work across the country. The association provides legal information to protect adult nightclub owners.
Spencer said Bergthold is defending a bill that she believes he wrote, citing the similarity of Missouri's law to those he has written in other states. Bergthold in 2007 wrote a bill approved by the Ohio legislature that puts very similar restrictions on sexually oriented businesses there, except that the Ohio bill doesn't ban nudity.
Bergthold did not respond to multiple phone calls and e-mails from the Missourian seeking an interview. One of his law partners, Stephen Duggins, said members of the firm don't speak to the media because they want to protect their clients.
A nationwide cause
Phil Burress is president of Citizens for Community Values, an Ohio-based group that promotes Judeo-Christian moral values. He said Bergthold wrote the Ohio bill for the group, which brought it to the Ohio legislature through an initiative petition. Burress wouldn't say how much his organization paid Bergthold.
Bergthold has defended laws against sexually oriented businesses all over the country. As of June 30, Coweta County, Ga., has paid Bergthold a total of $106,667.82 to rewrite ordinances that would prevent an adult business from opening up near a highway. In 2007, the city of Detroit paid him $95,000 to write guidelines for new restrictions on adult businesses.
Bergthold’s website boasts a long list of government clients in 21 states.
Bergthold has written volumes on strategies for combating sexually oriented businesses. His book "Local Regulation of Adult Businesses, 2009-10 ed.," lists for $506 on amazon.com. A used copy sells for $470.58.
In "Into the Night," an article published in Municipal Lawyer magazine in the spring of 2008, Bergthold writes about the best ways to combat adult business without violating the Constitution.
“It is well-established that a local government cannot ban sexually oriented businesses,” Bergthold writes, “but (it) may regulate the time, place, and manner of their operations in order to prevent the negative secondary effects associated with such enterprises.”
In legal matters regulating free speech, it is important that restrictions be content-neutral. That means they have to target the ill effects of sexually oriented businesses rather than undermining free speech.
Bergthold understands that well.
“Municipalities are generally careful to specify that the purpose of their ordinance is to control the adverse impacts of adult businesses and, in doing so, avoid the strict judicial scrutiny that is reserved for regulations aimed at the content of speech,” he wrote in "Into the Night."
Lesson learned here
Columbia officials waded into the law regarding adult businesses in 1986, when the city explored whether to pass an ordinance that would impose zoning restrictions on new sexually oriented businesses. The Columbia Planning and Zoning Commission held a public hearing that attracted more than 40 residents who argued for and against the measure.
After that hearing and a subsequent work session, commission Chairman Larry Niedergerke wrote a letter to then-Mayor Rodney Smith, arguing the restrictions were a bad idea.
“Most of the testimony was emotional and/or irrelevant moral opinions," he wrote. "We got little testimony upon which we could justify restrictions. ... I think most commission members believe that pornography is a law enforcement problem, not a zoning problem.”
In a 1987 memo to the council, City Attorney Fred Boeckmann used the same argument that Bergthold uses today. "Regulation must be based upon articulable facts that show that the adult use is resulting in detrimental secondary effects on the community or that such ... effects are reasonably forseeable."
The matter died after the commission decided not to recommend a zoning ordinance regulating adult businesses.
Tim Thomason, a Columbia police officer in charge of investigations into prostitution and human trafficking, said there isn't enough evidence to suggest a link between strip clubs and adverse secondary effects.
“We haven’t found anything that would tell us that strip clubs are involved in prostitution or other crimes of human trafficking.”
“There have certainly been times when work(ers) for strip clubs have ventured out on their own,” Thomason said. “But to the best of my knowledge, it is on their own doing. It didn't associate with the business to do that.”
State bill targets secondary effects
The primary attack of Senate Bill 586 against sexually oriented businesses is the secondary effects those businesses are alleged to create. Sen. Matt Bartle, R-Jackson County, sponsored the bill. In his weekly column for the week of May 3, Bartle displayed his feelings about adult businesses.
“These dollar-driven smut shops are unwilling to take responsibility for the negative consequences that result from their presence in the community,” Bartle writes. “Additionally, smut shops often create an environment for serious crime to occur, such as prostitution and sexual exploitation.”
Bartle, through an assistant, declined several requests to be interviewed for this story.
Daniel Linz, a professor of communication and law at the University of California-Santa Barbara, tests assumptions made by lawyers and policymakers. Linz has looked into the secondary effects of adult businesses in more than 35 communities, trying to find a relationship between crime and adult businesses.
“It’s a myth,” Linz said. “It’s a legal myth that has to be perpetrated in order for the government to regulate the business. ... There is simply no good evidence that secondary effects exist.”
Linz said Bergthold uses a secondary effects study from one city to infer that the same problems will occur in others.
“There are studies that are methodologically flawed that travel from one municipality to the next,” Linz said.
Luke Lirot, an attorney who has challenged Bergthold in court, doesn’t believe the secondary-effects studies are always accurate. Some of his clients have paid experts to review previous studies of secondary effects.
“They select locations not to test theories but to support their conclusion,” Lirot said. “That’s not the way to do a study.”
A moral motivation
Spencer believes there is only one reason for Bergthold’s work.
Bergthold graduated from Regent University of Law in 1997. Its mission statement suggests that Spencer is on the right track. It reads:
“Our mission is to serve as a leading center of Christian thought and action providing an excellent education from a Biblical perspective and global context in pivotal professions to equip Christian leaders to change the world.”
“I don’t think there is a legal motivation at all,” Spencer said. “I think it’s a profoundly religious motivation. He was heavily influenced by fundamental Christianity.”
Lirot agrees. “Rather than being an advocate, he is truly basing his desires in deeply held religious beliefs and has received funding from religious organizations.”