ATTORNEY Dave Osgood was back in court last week, poised to knock off another anti-music law. Osgood points out that he's made "a cottage industry" of suing over poorly written laws that regulate the local music industry. This time, Seattle's notorious Teen Dance Ordinance is in his sights. The city of Seattle isn't backing away from Osgood's challenge, but depositions in the case sure seem damning for the law's defenders.
The Teen Dance Ordinance was passed in 1985 as city government struggled with the Monastery: a club/church where parents claimed minors received access to that unholy trinity—sex, drugs, and disco. The law cast a wide net over the all-ages music scene, regulating teen clubs so fiercely that they have largely ceased to exist. The law stipulates that to run a club serving teenagers, owners must buy $1 million in liability insurance, indemnify city government against lawsuits, limit patrons to people between 15 and 20 years of age, and hire off-duty Seattle cops to do security.
Efforts to overturn the law politically have raged for years, culminating in former Mayor Paul Schell's veto of a reform bill sponsored by City Council member Richard Conlin in August 2000. At that point, the Joint Artists and Music Promotions Action Committee (JAMPAC) figured it should give up on City Hall and seek relief from the courts.
Osgood, representing JAMPAC, filed suit in federal court in December 2000. Since then, both sides have been preparing their cases. Last week, both the city and Osgood presented to federal Judge Robert Lasnik the first in a series of briefs for summary judgment—a legal procedure whereby a judge decides a case without a jury trial.
Osgood argues his side largely on First Amendment grounds—specifically that the law violates freedom of speech, expression, and association. He also claims the law is unfairly vague and overly broad.
Osgood's questioning of Seattle Deputy Police Chief Clark Kimerer—the city's designated teen-dance expert—certainly makes the cops' understanding of the law sound pretty vague. Osgood and Kimerer sparred over whether the city had a working definition of dancing at all. Kimerer says that neither a rave nor a concert meets his definition of a "dance." On being questioned as to whether mosh-pit gyrations constitute dancing, Kimerer replied: "There's a variety of physical activities that occur at a concert. Whether they rise to the level of dancing is, I guess, in the eye of the beholder."
Not good enough, says Osgood.
The U.S. Supreme Court cites three reasons a law must be specific, according to Osgood: so citizens can realize when they're breaking it; so government officials can't enforce it subjectively; and so its existence doesn't have a chilling effect on the exercise of First Amendment rights. Osgood argues that the Teen Dance Ordinance violates all three provisions.
He also presents evidence to support his claim that the way police use the law is overly broad—basically going after whomever they please. Although there were several all-ages dance clubs in operation in Seattle when the law was passed, the first citation issued under the law went to the operators of a concert hall (supposedly concerts are exempt from the law) called the Gorilla Gardens in the International District. In another celebrated incident, police closed a 1993 Mudhoney concert at the Capitol Hill Odd Fellows Hall. Promoter Dave Meinert describes the situation in case documents: "The Seattle Police arrived shortly and told me since kids were present and they looked like they were dancing, the event did require a [teen-dance] permit."
OSGOOD USES the case of the Catwalk in Pioneer Square to demonstrate the unfairness of the law's requirement that off-duty Seattle police be used to provide security at dances. Arman Badri, owner of the Catwalk, last year took advantage of a change in state liquor laws that allows all-ages concerts at clubs as long as adults consuming alcohol are restricted to a controlled area. However, when the police learned that a DJ would be spinning records between bands at an Oct. 31 all-ages concert, Badri was cautioned that he would be in violation of the Teen Dance Ordinance if people started dancing. In a case deposition, Badri recalls: "I asked the DJ to tell the audience not to dance because I didn't want to get in trouble."
In order to stave off further harassment, Badri obtained a teen-dance permit without realizing that the law restricts admission to people between the ages of 15 and 20 and mandates that an off-duty police officer be hired to provide outside security. Since Seattle police officers can't work for any establishment with a liquor license, the Catwalk was legally ineligible.
Osgood established during his questioning of Deputy Police Chief Kimerer that off-duty work by Seattle police must be approved by the police chain of command, and that the law provides no guarantee that off-duty officers will be available for events. "The Police Guild, by not agreeing to work for a venue, can shut down free speech," Osgood argues.
The city's major defense to the JAMPAC suit is to question the group's right to sue at all. Although both Meinert and other affected promoters are JAMPAC board members, the city claims the music industry organization can't prove any injury from the enforcement of the Teen Dance Ordinance. As to JAMPAC's constitutional claims, a brief recently filed by Assistant City Attorney Ted Inkley brushes them aside based on a 1989 high court ruling upholding a Dallas teen-dance ordinance. Inkley declined to comment further.
Osgood notes that the Dallas ruling rejected the claim that the law violated teenagers' right to freedom of association, but his suit also includes freedom of speech and freedom of expression claims.
It's not just a technical point. In another Osgood case from 1999, U.S. District Judge John Coughenour struck down a Washington state law requiring that clubs obtain government permission before offering live music and dancing. The judge ruled that live music and dancing are activities protected by the First Amendment—and Osgood argues that even the city's top teen-dance cop can't establish a line between enjoying music and dancing.
"Dancing is an intrinsic part of music and musical performances—and that is protected expression," says Osgood. "The city is arguing that if people, for some reason, start dancing, that suddenly strips you of your First Amendment rights."
While Judge Lasnik will close the written record in this case in mid- February, after that he can ask both sides to make oral arguments before he issues a ruling. So currently only one thing is completely clear: This legal dance won't be over for a while.