An open booth law can curb the spread of sexually transmitted diseases

Editor’s Note: Written several years ago by Paul J. McGeady, who served as Morality in Media’s General Counsel from 1977 until 2006, this article provides an overview of one legal approach to addressing the problem of peep show booths. An up-to-date study on “Peep Show booths” has been prepared by the National Obscenity Law Center [475 Riverside Drive, Ste. 1264, New York, NY 10115 or call (212) 870-3222 or email nolc@moralityinmedia.org].

Introduction

There is nothing "adult" about an "adult" bookstore. Those who enter it will find a den of decadence, debasement, degradation, and depravity -- a hellhole! This is especially true of the peep show booths frequently found in the rear of an "adult" bookstore. They are designed to exhibit (for a series of coins or slugs) a hardcore pornographic film or video to a viewer in an enclosed booth. In some booths, live performers engage in sexual activities behind glass partitions. Viewers are often stimulated to have sex with another viewer in the same booth or through a "glory hole" with the patron of an adjoining booth. This spreads AIDS and other communicable diseases. Enclosed booths also facilitate masturbation, resulting in conditions that are unsanitary and an offense to decency.

Governmental interest

In 1986, The Health and Hospital Corporation of Marion County, Indiana (Indianapolis) recognized a primary danger to the public health and welfare posed by enclosing viewing booths in "adult" bookstores -- to wit, that such booths are a source of the epidemic of sexually transmitted diseases, especially AIDS. The county responded by passing a health ordinance requiring the doors be removed from these booths so that such anonymous, life-threatening sexual activity would be open to public view and thus discouraged.

Legislative findings

In any type of Open Booth Law, it is essential that the city, county, or state articulate a governmental interest that justifies the law. This requirement may be accomplished by a preamble or a section of the law designated as "legislative findings." An example is found in the Marion County ordinance. Where possible, evidence of sexual activities occurring in "adult" bookstores located in the community should be presented to the legislative body before it votes on an Open Booth Law. Such evidence could come from police officers, public health personnel, or private citizens who have witnessed sexual activities or unsanitary conditions in the booths. It is sometimes the case that the local authorities have insufficient evidence of sexual activity going on in peep show booths in their own community. The Open Booth Law should then indicate that it is relying on the experience of other communities that are specifically named in the preamble or "legislative findings" section.

Loss of profits

In 1991, Delaware passed a statewide law requiring that the doors be removed from "adult" bookstore peep show booths and restricting the hours and days of the stores' operation. In attempting unsuccessfully to have the law overturned in Federal court, the proprietor of a prominent "adult" bookstore stated that his store, as a result of the Open Booth and Hours of Operation provisions, had suffered "a decrease in patronage as measured by its booth and other revenue" of 66% to 75%. He further complained, "A number of patrons are unwilling to utilize the booths ... when they are subject to observation by others."