Protecting Your Group in a Hostile Legal Environment
by William ReMine
William ReMine is program chairperson and legal counsel for Uncommon Ground (see http://www.uncommon-ground.org) as well as legal counsel and head of seminars for Thunder in the Mountains (the annual midsummer leather and fetish conference in Denver, Colorado). He can be reached at DarkWindow@aol.com.
This paper was part of Mr. ReMine's presentation at the 2001 Leather Leadership Conference in Chicago.
Not all BD/SM groups are blessed with an easy relationship with their local governments. In Colorado, for example, BD/SM groups maintain a constant vigil for potential intrusion by the police. None of the BD/SM groups has been raided, but the climate is one of more than just due caution. In San Diego, where the environment was thought to be generally good, a BD/SM party was raided and six people were charged with public indecency. And the arrests in Attleboro, Massachusetts speak volumes. In Baltimore, the zoning board shut down one BD/SM group and then worked in tandem with the liquor licensing board to go after other BD/SM groups and events in the city. The problems there were eventually alleviated by the intervention of the National Coalition for Sexual Freedom (NCSF).
This presentation, ``Protecting Your Group in a Hostile Legal Environment,'' is dedicated to those of us vested with the responsibility for preventing problems with the police, zoning authorities, and other city officials.
Throughout this outline I have cited Colorado case law, as well as some U.S. Supreme Court cases. The Colorado cases reflect principles that are applicable nationwide. If your group has legal counsel, he or she can use them as a jumping-off point to research the law in your state.
II. The Four Main Exposures
The four main exposures are zoning, parking, fire inspections, and the double barreled threat of obscenity and public indecency laws.
As the BD/SM groups in Baltimore learned last year, zoning regulations can be used to shut down an organization. Moreover, because zoning is a legislative or administrative matter, an appeal from the decision of a local zoning board will be stacked against you. To prevail, you must be able to show that the zoning board's actions were arbitrary and capricious.
In dealing with zoning issues, you have two choices:
Fly under the radar, i.e., hope to go unnoticed by city officials; or
Comply fully with all zoning regulations, including applications for any permits, obtaining variances, and submitting to fact-finding hearings.
Both options, depending on your circumstances, are viable.
For example, your group wants to rent a warehouse space in an area that is zoned for light industrial use. The zoning regulations allow for gatherings and assemblies of people only with the zoning board's approval after a fact-finding hearing. The board's criteria call for an examination of street access, fire safety, adequacy of parking, and a laundry list of other considerations. Except for your group's presence, the area is essentially deserted at night when your meetings will be held. Because of the likelihood your presence will go unnoticed by the city, you might decide to fly under the radar.
But if you decide to go the compliance route, make sure you comply fully in every respect. And especially do not lie on the application form. For example, do not state that the space is being used for furniture manufacturing (hoping to slide by because two of your members make dungeon equipment there) when in fact it is used primarily for social gatherings.
Bottom line: Make an informed decision about how to handle zoning issues before or at the time your BD/SM group moves into the location.
Parking issues will draw the fire of zoning officials and the attention of police faster and more surely than anything else you do. If your group takes up all of the parking spaces in your area, neighboring business establishments will become annoyed and start complaining to city officials.
If your group is small and meets in someone's living room, you are not necessarily immune. The residential setting may keep zoning and fire inspection issues from arising, but the city may have regulations about the amount of on-the-street parking used by one house. As unlikely as it seems, there have been some instances where non-BD/SM gatherings (Bible studies) in homes were shut down by police and city officials.
Bottom line: When choosing the location for your meetings, pay special attention to the adequacy of parking.
C. Fire Inspection
If you are renting a commercial location, you are subject to fire inspections. Whether or not you can protect your group from police intrusions, the city has a legitimate and enforceable interest in inspecting your premises for fire safety. You cannot block a fire inspection on legal grounds.
Fire inspections can be used to shut down a BD/SM group, if the city is determined to do so. So, be prepared.
You eventually will face a fire inspection if you are renting a commercial space, even if the city is not looking to shut you down. So, be prepared.
Recommendation: Hire a fire safety expert (if you do not have one among your members) to inspect your premises. Fix every significant gig he or she finds. Need lighted exit signs? Need panic bars on the doors? Missing a fire extinguisher? Fix these problems before anyone from the city shows up asking to come onto the premises for a fire inspection.
D. Public Indecency
This is a huge area of exposure if not handled right. Chances are your BD/SM group has sexually explicit demos. Chances are you also have play parties where breasts, buttocks, and genitalia are exposed. If the police are going to raid your group, public indecency is the most likely reason.
How do you protect your group? Because this is such a crucial topic, we will cover it separately and fully later in this outline.
III. A Few Words About the First Amendment
A. First Amendment & Zoning
Government regulations that neither directly nor indirectly limit the content of protected expression and that seek only to impose time, place, and manner restrictions are constitutionally permissible if they are narrowly crafted to further a substantial governmental interest. City of Colorado Springs v. 2354, Inc., 896 P.2d 272, 293-95 (Colo. 195); Tattered Cover, Inc. v. Tooley, 696 P.2d 780, 784 (Colo. 1985).
In other words, regulations must be content-neutral.
Examples of content-neutral regulations that are routinely upheld by the courts are licensing and zoning. Governmental actions under the guise of zoning will run afoul of the Constitution only if they are arbitrary and done with the intent of suppressing protected expression.
B. First Amendment & Freedom of Expression
So, the burning question is: Does the First Amendment protect the content of meetings and social gatherings of BD/SM groups? And the answer is: It depends on whether the content of your meetings and parties is obscene.
All expression that is not obscene, including sexually explicit expression, is protected by the First Amendment. City of Colorado, supra at 292.
Obscenity is a legal concept. It differs from the colloquial use of ``obscenity'' and ``obscene'' and does not depend on whether any particular individual or group, whether religious or otherwise, would consider the content of your BD/SM gathering to be obscene. Expression is not obscene unless three tests are met:
Taken as a whole, does the challenged material appeal to the prurient interest?
Taken as a whole, does the challenged material depict or describe, in a patently offensive way, sexual conduct that is specifically identified by state law?1
Taken as a whole, does the material lack serious literary, artistic, political, or scientific value?
If any one of these three questions is answered ``no,'' the material is not obscene and therefore is protected by the First Amendment.
The government may not limit the content of protected expression, no matter how objectionable or offensive that content might be. City of Colorado Springs, supra at 293. Protection of the right to express controversial ideas in controversial ways lies at the heart of the First Amendment. An infringement of that right occurs if an insufficiently justified governmental action discourages a group's pursuit of its First Amendment interests. State Board for Community Colleges & Occupational Education v. Olsen, 687 P.2d 429, 439 (Colo. 1984). See also Eagon v. City of Elk City, 72 F.3d 1481, 1487 (10th Cir. 1996).
Insufficiently justified means regulation that: (a) is not content-neutral; or (b) is content-neutral but does not further a substantial governmental interest; or (c) is content-neutral and furthers a substantial governmental interest but nonetheless fails to allow ample alternative means of communication.
I believe the content of BD/SM education and BD/SM social gatherings is not obscene because it typically meets none of the three tests of obscenity.
As we discuss the three tests below, remember that in analyzing whether expression is obscene, the U.S. Supreme Courts' interpretation of the Constitution mandates that the material be ``taken as a whole.'' This means the material is considered in its entirety. For example, if the challenged work were a magazine, the entire magazine must be examined, including articles, interviews, letters, drawings, and photographs. People v. New Horizons, Inc., 616 P.2d 106, 110 (Colo. 1980).
1. Prurient Interest
Material can be classified as obscene only if, taken as a whole, it appeals to the prurient interest. In general terms, prurient interest means something that arouses lascivious desires. That is probably close to the meaning used by most states. In Colorado, prurient interest has been defined by statute to mean ``a shameful or morbid interest.'' C.R.S. § 18-7-101(6.5).
In the context of a BD/SM organization, the scope of consideration would include the totality of the meetings. For example, a typical meeting of Uncommon Ground lasts two and a half hours, consisting of a business portion, a social break, and an educational program on BD/SM. Past programs have included bondage, flogging, paddling, piercing, and psychological edge play. The tone of the programs is not about titillation. It is about safety, ethics, and the building of skills and effective BD/SM techniques. Although meetings usually segue into play parties and separate parties are held at other times during the month, the content of the parties is about half conversation among friends and half practical opportunities to practice new skills or to hone existing ones, under the watchful eye of safety monitors (i.e., dungeon monitors). Mentoring also takes place during the parties. Those not playing have the opportunity to watch and learn.
The consensus in the BD/SM community is that BD/SM -- and especially the safety aspects of BD/SM -- cannot be taught adequately without exposing buttocks, breasts, or genitalia as needed for the demo being presented. The reason some presentations are more explicit than others is not to inflame a shameful or morbid interest in sex. It is because the explicitness is necessary to teach BD/SM safety and know-how. Moreover, BD/SM and BD/SM safety cannot be taught adequately without demonstrating how a scene is done.
2. Patently Offensive
Expression is obscene only if, taken as a whole, it depicts or describes, in a patently offensive way, sexual conduct that is specifically identified by applicable state law. For example, here is the specifically identified sexual conduct in the Colorado obscenity statute, codified at C.R.S. § 18-7-101(2)(b):
Patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
Patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation, or covered male genitals in a discernibly turgid state.
Under the guidelines laid down by the U.S. Supreme Court, to be patently offensive the material must be so offensive on its face that it affronts ``current community standards of decency.''
While BD/SM is a minority sexual practice, it is widely tolerated and its existence accepted. BD/SM fetish wear and activities have been featured in music videos and commercials on television, in print media advertising, at local nightclubs, and in general release movies. Moreover, BD/SM is the subject matter of educational events around the country, ranging in attendance from 200 to 2,000 people, plus gay or lesbian BD/SM-oriented leather contests ranging in attendance from 750 to 10,000 people (see following table):
|January||Mid-Atlantic Leather||Gay Male, Contest||Washington, D.C||3500|
|January or February||Pantheon of Leather||Awards||New Orleans||100|
|February (five-year intervals)||The Eulenspiegel Society (TES)||Pansexual, Educational||New York City||1000|
|March||Master/slave Conference||Pansexual, Educational||Atlanta||750|
|Quarterly||Boston Fetish Event||Pansexual, Educational||Boston||700-1000|
|April||San Diego Leather Fest||Pansexual, Educational||San Diego||1500-2000|
|May||International Mr. Leather||Gay Male, Contest||Chicago||10,000|
|June||Boot Camp||Gay Male, Educational||San Francisco||350|
|June||American Brotherhood||Gay & Lesbian, Contest||Atlanta||750|
|July||International Ms. Leather (IMSL)||Lesbian, Contest||Rotates Host Cities||1000-2000|
|July or August||Thunder in the Mountains||Pansexual, Educational||Denver||1000|
|September||Inferno||Gay Male, Educational||Michigan||600|
|September||Delta||Gay Male, Educational||Pennsylvania||450|
|November||Black Rose||Pansexual, Educational||Maryland||1500|
|November||Living in Leather||Pansexual, Educational||Rotates Host Cities||500|
In an appendix to Screw the Roses, Send me the Thorns (1995), Phillip Miller and Molly Devon listed 154 BD/SM groups throughout the United States, plus 29 public gathering places devoted to BD/SM. The BD/SM community has grown considerably in the six years since their book was published.
The point here is that, although BD/SM may not be the social norm in the United States, it has a wide enough following that a local prosecutor would have some difficulty trying to prove beyond a reasonable doubt that BD/SM affronts ``current community standards of decency.''
3. Lacking Political or Scientific Value
Lastly, expression is obscene only if, taken as a whole, it lacks serious literary, artistic, political, or scientific value.
BD/SM organizations often present educational programs relating to BD/SM and the law, the history of the BD/SM community, social and political issues of sexual minorities, BD/SM safety, sexual health, and prevention of disease, along with advocacy of the values, norms, and ethics within the BD/SM community. A local prosecutor would have an uphill battle trying to prove beyond a reasonable doubt that the content found in a group's educational programs -- taken as a whole -- lacked political value.
Additionally, if scientific value includes discussion of safety and health, then the case for BD/SM organizations engaging in protected expression becomes that much stronger. The emphasis on education about safety and health is very strong in every BD/SM organization of which I am aware.
Each of the three tests, standing separately by itself, would be sufficient to remove a BD/SM group from the sphere of obscenity. The organizers, presenters, and participants at meetings of these groups have a constitutionally protected interest in disseminating and receiving information about BD/SM and in socializing with others who hold BD/SM and the ethics of the BD/SM community as a common interest. In my opinion, they are entitled to the protection of the First Amendment, notwithstanding the controversial nature of the subject matter.
C. Freedom of Association
Freedom of association is considered an element of the broad right to freedom of expression. It protects the right of individuals to associate together to further their personal beliefs. Healy v. James, 408 U.S. 179, 181 (1972); State Board for Community Colleges & Occupational Education v. Olsen, 687 P.2d 429, 439 (Colo. 1984). Association, in the context of the First Amendment, refers to the means by which individual members of a group seek to make more effective the expression of their own views.
The right to associate recognizes one's right to join with others to pursue goals that are protected by the First Amendment. An abridgment of that right occurs when any insufficiently justified governmental action interferes with or discourages a group's pursuit of its First Amendment interest. Olsen, supra at 439.
The constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984). Protecting those relationships from unwarranted state interference is necessary to safeguard the ability to independently define one's identity, which is central to the concept of liberty. Id. at 619.
D. Associational Privacy
Freedom of association also includes the right of ``associational privacy,'' which protects groups in which there are attachments and commitments among members who share a special community of thoughts, experiences, and beliefs, and the sharing of personal aspects of one's life. Roberts, supra at 620; Evans v. Romer, 882 P.2d 1334, 1344 (1994).
Groups entitled to associational privacy are marked by such attributes as relative smallness, a high degree of selectivity in the individuals' decisions to begin and maintain the affiliation, and seclusion from outsiders in critical aspects of the relationship. Roberts at 620; Evans at 1344.
Among other things, associational privacy protects against the government or the courts compelling a protected organization to disclose its membership list. Smith v. District Court, 797 P.2d 1244, 1249 (Colo. 1990).
When associational privacy is concerned, even the threatened disclosure of affiliation with the group could result in the chilling of constitutionally protected expression. City of Colorado Springs v. 2354, Inc., 896 P.2d 272, 289 (Colo. 1995). Thus, for example, associational privacy protected the NAACP from having to divulge a list of its members to the state of Alabama in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).
IV. Protecting Your Group from Obscenity Charges
The key to protecting your BD/SM group from obscenity charges is: (a) the strength of its educational programs; plus (b) the business and social portions of your group's meetings. The reason for including the business and social portions as a factor is that they have no erotic content, and thus the business and social portions tend to offset the explicit sexual content that may occur in some of your BD/SM demos.
My recommendation is to have a balanced diet of programs, some of which are non-erotic and some of which may include explicit sexual conduct. Looking at the panorama of programs presented at your group's meetings over the course of a year, you should strive to have about a third to a half of your programs on topics such as:
panel discussion on S/M relationships
seminar on latex fetish wear and taking care of latex
seminar or workshop on negotiation
seminar and demo on the history and how-to of corsets
seminar or panel on the philosophy and practice of feminine domination
workshops and demos on dungeon monitoring
seminar and demo on uniforms as fetish wear
fashion show of S/M fetish wear
panel discussion on submission and bottoming
panel discussion on transgendered issues
In your group's more sexually explicit programs, make sure there is an emphasis on safety, ethics, technique, and know-how. The central purpose should be education, not titillation.
Another tip is to keep a chronological list of all the programs at your group's meetings. If your group is challenged for obscenity, a spokesperson can use the list to describe the full context of the educational efforts, without having to reconstruct it from memory. For example, at Uncommon Ground we publish the list of past programs on our website in reverse chronological order, starting with the most recent program and going back three years. The program chairperson or any of our board members could use it as an aid to giving a thorough account of our BD/SM educational purpose.
V. Public Indecency
Even if your group's activities are protected by the First Amendment, you still may be subject to public indecency laws. Whether you are faced with a state statute or a local ordinance on public decency, the government has the power to prohibit lewd conduct done in public.
So, the first question is: What does ``public'' mean? Your group's meetings, demos, and play parties are subject to the public indecency laws if: (a) the activities are in a public place; or (b) the activities are done in a place where they may reasonably be expected to be seen by members of the public.
If yours is a smaller group meeting in someone's living room, you have no problem. Your home is not a public place, and your guests are not members of the public. If you draw the curtains and close the door, it is not reasonable to expect the members of the public to see inside. You may still have issues of noise and parking, but not public indecency.
At the other end of the spectrum are BD/SM groups that meet in local bars. Now you are definitely in a place where members of the public can see your activities. Even if you use a banquet room or a cellar to sequester yourself, the bar is subject to the liquor licensing regulations. So-called ``bar rules'' will apply. You will need to find out what those rules are in your locality, but they probably include: (a) women's nipples must be covered; (b) no exposed genitalia of either gender; (c) a one-inch strip of clothing covering the crack of any exposed buttocks; and (d) no simulated acts of sexual intercourse, sodomy, fellatio, cunnilingus, or masturbation.
The middle of the spectrum is occupied by the BD/SM groups that rent commercial premises, such as a small warehouse or a manufacturing space, for their meetings. Some of the demos at your meetings and the play at your parties may involve exposure of breasts, genitals, or buttocks.2 Or there may be simulated sexual acts or even actual penetration. These BD/SM groups are potentially at risk, and need to look at two questions:
Are the commercial premises a ``public place''?
Even if your group does not meet in a public place, are the premises or your activities accessible to members of the public?
1. Are the premises a public place?
It depends. Typically a public place is one to which the public or a substantial segment of the public has access. For example, the public indecency statute or ordinance may define highways, transportation facilities, parks, schools, playgrounds, places of amusement, and the common areas of public and private buildings as ``public places.''
Suppose your group rents a conference room at a hotel. Is that a public place? My suggestion is that you research the law in your own state.3 Because it may be helpful to you, I will quote the analysis done under Colorado law for Thunder in the Mountains three years ago:
A hotel is private property, but it invites the general public onto its premises for business purposes as hotel guests and restaurant patrons. Within the confines of a hotel are spaces partaking of different degrees of privacy or non-privacy. There is no question that the guest rooms are private, not public places. The kitchen, storage rooms, and other areas of the hotel that are meant for access only by hotel employees are not public places. By contrast, a hotel's lobby and restaurant would be considered public places.
A hotel conference room would be non-public. Access to hotel conference rooms is available by arranging to lease them. The general public is not invited to enter them when they are unleased. They are typically locked when not in use. When a hotel conference room is leased, the person or organization leasing it has the right to determine who will be admitted and who will not.
The fact that some portions of a hotel, such as the lobby, are open to the public does not make the entire building a public place. A license or privilege to remain in a building that is only partly open to the public is not a license or privilege to enter or remain in the parts that are not open to the public. People v. Ridenour, 878 P.2d 23, 26 (Colo. App. 1994).
2. Assuming your BD/SM group does not meet in a public place, is it nonetheless accessible to members of the public?
The argument by local officials intent on suppressing your group is that you are ``open to the public'' because anyone can buy a membership or pay the entrance fee for the event.
Whether premises are open to the public is determined by the permission you extend as the occupier of the premises. In Colorado, the following test applies: ``Open to the public means premises which by their physical nature, function, custom, usage, notice or lack thereof, or other circumstances at the time would cause a reasonable person to believe no permission to enter or remain is required.'' People v. Bozeman, 624 P.2d 916 (Colo. App. 1980). Accord, People v. Ridenour, 878 P.2d 23, 26 (Colo. App. 1994).
Although the buildings in the Bozeman and Ridenour cases were partially open to the public, both involved unlawful police entry into areas of the buildings that were not open to the public. The key was that a reasonable person in the same circumstances would not have concluded that he or she had permission to enter or remain in those parts of the buildings.
The ``anyone can buy a membership'' argument actually begs the question. It overlooks the fact that the right to participate is premised on more than just paying a fee at the door or an annual fee or both. Your group undoubtedly has conditions of membership and perhaps even a membership process.
VI. Protecting Your Group from Public Indecency Charges
These are my recommendations, in order of importance:
Make your meetings and events open only to members and their guests. Post a hospitality person at the door to screen out anyone who is not a member or guest. Because this is a boring job, you will need a rotation of people on door duty.
Have a well-defined membership process that must be followed before a person can become a member. For example, Uncommon Ground requires that prospective members: (a) attend an orientation; (b) sign the terms of membership; (c) attend a regular meeting of the organization; (d) be introduced to the members; (e) be accepted by a two-thirds vote of the board; and (f) pay the annual dues.
Have all prospective members sign your Terms of Membership, and have all guests sign a Guest Waiver (see http://www.uncommon-ground.org/waiver.htm for an example). The content should include:
agreement that the person is attending as a member or guest of your group and not as a member of the public;
a certification that the person is above the minimum age for your group;
a statement that the person understands the subject matter of your meetings and events and does not find it offensive or objectionable;
agreement not to consume or bring alcoholic beverages or illegal drugs to your meetings or events (if that is one of your group's conditions);
agreement not to bring a camera, video recording device, or audio recording device into any of your meetings or events (if that is one of your group's conditions), plus permission for your group to confiscate the film or other media if this term is violated; and
a waiver of liability for physical or emotional injuries that might occur from the person's participation at your meetings or events or from using the information or techniques learned at your meetings or events.
Issue membership cards.
Post a ``Members Only'' sign at or near the entrance.
VII. Will Following these Suggestions Guarantee Your Group Will Not be Hassled or Raided?
Nope. The goal is to make your group a harder target. The goal is also to make it easy for your lawyer to get obscenity charges or public indecency charges dismissed.
An additional point on the subject of police raids: Your members' rights to associational privacy would be abridged if the police exposed them to media publicity by giving reporters access to police files or by inviting a television crew along on a police raid. In the later instance, the violation of rights would encompass both the First and Fourth Amendments. The U.S. Supreme Court has held that police officers may be held liable for violating the Fourth Amendment if they invite a representative of the television news media to accompany them in executing a warrant. Wilson v. Layne, _ U.S. _, 119 S. Ct. 1692, 1698-99 (1999). In terms of the violation of constitutional rights, it probably would make little difference whether the police directly invited the news media (as was done in the Wilson case) or made the invitation indirectly by broadcasting their purpose and destination on a radio band known to be monitored by television reporters.
VIII. Privacy & The Fourth Amendment
The Fourth Amendment deals with unreasonable searches and seizures. It requires the police, in most instances, to secure either a warrant or the occupant's consent before entering private premises.
Among other things, the Fourth Amendment protects an individual's reasonable expectations of privacy in commercial premises. United States v. Bute, 43 F.3d 531, 536 (10th Cir. 1994). Classifying a building as ``commercial'' does not govern the level of privacy that attaches. On the contrary, the reasonable expectation of privacy turns on the nature and circumstances of the premises at the time. Id. at 536-37.
For BD/SM groups, security measures designed to keep out non-members are the key. That is one of the reasons I place such a premium on having greeters at the door who will admit only members and their guests.
IX. What If the Police Drop In?
If the police raid your meeting or event, they will arrive in force. They will arrive with a warrant. Dealing with a raid is not the topic here. Basically, you just do what the man in the uniform tells you to do and call your lawyer later. My concern is with officers walking the street or driving by who come to the door.
From the officers' standpoint, they are typically concerned about: (a) their curiosity about what is going on inside; (b) alcohol on the premises; and (c) whether you are having a rave, with hordes of teenagers. Or the officers may have come to the door because there is a problem with one of the cars in the parking lot.
My assumption is that you do not want the police to come past the entry area. And there is good reason. If the officers say they would like to look around and your greeter says yes, you have blown the Fourth Amendment protections of everyone inside. If consent is given to the police entering on the premises, no warrant is needed. If they then find something inside that prompts an arrest, the evidence and the bust cannot be suppressed for violation of the Fourth Amendment.
What if the officers ask to come in, you refuse, and they insist? You have to let them in even if they are dead wrong, or you can be arrested for obstruction of justice.
So, your first line of defense is to persuade the officers that they do not want to enter. Your second line of defense is to not consent to the entry while at the same time not obstructing the officers. This requires someone able to be cordial, non-aggressive, but firm.
Here is the drill for your people working security at the door:
When police officers arrive, your greeter should ask: ``How can I help you?'' The officers will probably ask what is going on inside. Your greeter should give them a straight answer, such as: ``We're a private, members-only organization devoted to S/M.'' If the officers are not there for a specific purpose, such as speaking with the owner of a car that is misparked, they will probably ask more questions. The fact that there is S/M going on may be enough to dissuade the officers from wanting to look around.
Your greeter should send for someone highly placed within your group to come to the entry areas and speak with the police officers: ``Let me get someone for you who can answer your questions better than I can.''
Your greeter should offer the police officers one of your group's brochures. The point here is to start satisfying their curiosity.
Whoever speaks with the officers should stress that the event inside is not open to the public. It is for members and their guests only. Everyone is over the age of twenty-one (which I recommend for exactly this circumstance), and no alcohol is being served or allowed to be brought on premises (which I also recommend).
If the officers ask to ``do a walk through'' or to ``look around,'' do not ask them if they have a warrant. That will only escalate the tension. Instead, say something like: ``I'd like to persuade you not to do that, if at all possible. Our members inside are practicing their S/M skills, and it would be upsetting to have strangers walk in.''
If that does not work and the officers insist on going in, say the following as you step aside and let them pass: ``I do not consent to your entry on the premises, nor am I waiving the privacy rights or Fourth Amendment rights of anyone present, but I will not obstruct you in the performance or apparent performance of your official duties.''
The officers will realize they have just heard lawyer language. It should be a signal to them that they are making a mistake. They may not know specifically why, but the wording of the non-consent will make them feel hesitant.
If the officers go inside anyway, you can review the nature and circumstances of the entry with your group's lawyer the next day. But whatever you do, avoid any expression of consent to enter the premises.
- ... law?1
In Colorado, for example, the material must be so offensive on its face that it affronts current community standards of tolerance. The yardstick is a statewide standard, not a question of what is tolerable in a given town or suburb. Note: In many or most states, the standard is a community standard of ``decency'' rather than of ``tolerance.''
- ... buttocks.2
The consensus in the BD/SM community is that BD/SM and its safety aspects cannot be taught adequately without exposing the genitals, breasts, or buttocks as needed for the subject at hand. Nor can BD/SM techniques and safety be taught without demonstrating how a scene is done. There is no other way to impart BD/SM know-how effectively.
- ... state.3
Unlike bars, hotel conference rooms may not be subject to ``bar rules'' under the liquor licensing regulations. The liquor licensing for hotels is unique because of the multi-functional character of the building. Thus, a hotel liquor license may extend only to the bar and the restaurants, without affecting the conduct done in conference rooms.
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