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City attorney talks about bikini baristas and how free speech is more free in Oregon

by: NEWS-TIMES PHOTO: CHASE ALLGOOD - Paul Elsner, city attorney of Forest Grove, brings his dog to his downtown Portland office, where he spoke to the News-Times about Oregon law and free expression.Three months ago there was no dispute over the hottest topic in Forest Grove after Dream Girl Espresso set up shop in a strip mall parking lot along Pacific Avenue, on the edge of the Rogers Park neighborhood.

The issues of sex, nudity and free speech shrank to a simmer after a contentious city council meeting in August. But they never disappeared.

Last month two naked men briefly ran wild — one in Pacific Avenue traffic and one in the woods outside Banks — before being stopped and arrested.

More recently, there's been a regional uproar over a middle-school football coach who scheduled his team's party at Hooters.

Two bikini baristas in Everett, Wash., were arrested Oct. 30 for violating the city's "adult cabaret" law, and a third for lewd conduct.

And back in Forest Grove, questions have been raised about whether the town's bikini baristas have returned to wearing pasties instead of bikinis (see sidebar).

For help with the legal issues surrounding these incidents, the News-Times turned to a man who knows more about nudity and Oregon law than just about anyone: Forest Grove City Attorney Paul Elsner.

When Dream Girl opponents called for the city to either ban or relocate the kiosk, elected officials looked to Elsner for advice.

Elsner, after all, had already argued similar proposals before the Oregon Supreme Court, years ago when he was an attorney for the city of Portland.

He lost.

In Sekne vs. City of Portland, after a stripper challenged the city’s requirements for women to cover certain body parts, “the court said nudity was free speech so you couldn’t require them to be clothed,” Elsner remembers.

In a separate case, he argued that Portland should be able to regulate the location of adult-oriented businesses (in that case, adult bookstores) because zoning was an extension of the public-nuisance law and the bookstores threatened people’s common-law right to “quiet enjoyment” of their property.

Once again, the court disagreed, ruling the city could not target certain bookstores based on the content of their ‘speech.’

News-Times: If the Oregon Supreme Court says nudity is free speech, that must be why the naked man on Pacific Avenue was arrested not for nudity, but for running into traffic. So walking down the street naked is no problem?

Elsner: There can be a problem with it. It’s a difficult distinction to draw sometimes. You could probably have a regulation (and I think some of our clients do) that basically says you can’t be on your front lawn naked.

Why isn’t that free speech?

Well you’re not there doing it for free speech.

Say you’re a nudist. You just like to walk around without clothes.

That would be the argument one would make. There was a guy in Happy Valley (in 2007) who had a proclivity to get his mail from his mailbox in a state of undress. His house and mailbox [were] near a school bus stop … This ordinance was the response: “It is unlawful for any person to expose his or her genitals while in a public place or place visible from a public place if the exposure reasonably would be expected to alarm or annoy another person. There is a presumption that such exposure would be expected to alarm or annoy another person under the age of 13 years.”

Did it work?

He was cited twice and then left town. Remember, the government can exercise greater authority for the protection of children under the age of 18.

It seems that many Forest Grove parents feel the same need to protect their children from the bikini baristas, who can be seen through the stand's windows. What’s the difference between protecting kids from a naked man and protecting them from a naked woman?

They’re not naked.

Virtually naked.

There’s a real difference between naked and virtually naked. It is a very hard line to draw and you don’t have any real facts to support that nudity somehow has an adverse impact on kids.

But neither did your office when it helped write that Happy Valley ordinance. You had to presume kids under 13 would be alarmed or annoyed by the naked man.

I’m not saying in certain instances an ordinance like this might not be on the edge.

But I think those circumstances were different. You have to look at the totality of circumstances before enforcing any regulation.What the bikini baristas are doing is obviously a marketing tool. And marketing is commercial speech. We don’t make a distinction in Oregon between commercial speech and other speech. The U.S. Constitution does. And the U.S. Supreme Court has recognized distinctions and different types of speech can be treated differently. But the Oregon Constitution does not draw distinctions like that. In Oregon, all speech is entitled to the same constitutional protection.

Are children barred from strip clubs?

I am not aware of any local regulation that prohibits them from that.

So an 8-year-old could walk into a strip club?

Assuming the club is not serving liquor.

I’ve heard it’s okay to be naked in public unless your intent is sexual arousal. It seems people will say the Dream Girls are trying to sexually arouse people.

No, they’re not. They are doing what Valvoline does and Penzoil does. You can look at any number of calendars that basically have very attractive women draping themselves over cars very scantily clad. It’s a marketing tool. It may sexually arouse someone.

I’ve heard also the law is pretty specific about what body parts can't be shown.

That’s what was struck down (by the Oregon Supreme Court).

Isn’t there a crime of indecent exposure?

Look up ORS 163.465: “A person commits the crime of public indecency if while in, or in view of, a public place, the person performs an act of sexual intercourse, an act of deviate sexual intercourse, an act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person.”

Well, nobody seems to be having sex at this stand.

And there’s no claim whatsoever saying they expose their genitalia. They may be scantily clad but they’re still clad.

Let’s talk about zoning. You say Oregon doesn’t have any zoning requirements for strip clubs?


Dream Girl could put a strip club up in that very same parking lot?

Yes. If there’s a market for it. Ultimately, the success or failure is in large measure left in the hands of the people who go there. If (customers) don’t make it profitable, they’ll go out of business.

I’ve heard Washington can regulate strip clubs. Is that because that’s a different state and a different constitution?

Yes. At the time the constitution was adopted here in Oregon, it was a vigorous and robust life and fairly bawdy. They didn’t regulate that stuff.

So if the city can’t force Dream Girl to move to another area of town, can it issue a conditional-use permit? With a condition requiring brown paper over the kiosk’s sidewalk-facing window so kids walking past can’t see in?

They couldn’t impose that. That’s an arbitrary regulation because it’s based on 'content.' The bikini baristas are in the business of selling coffee. They’re not in the business of selling sex.

Well some people say they are in the business of selling sex if they’re getting better tips or more business because of their sexual attire — or lack of attire.

But they are not selling the act of sex. They are not engaging in prostitution.

Can you explain the values behind Oregon’s more expansive free expression law?

It’s the same value everyone places on speech. It’s critical to the functioning of democracy, of people’s ability to participate in what’s called the marketplace of ideas. Some people may find certain ideas to be repugnant and repulsive or inconsistent with their value system, but where that gets sorted out is in the marketplace of ideas, where ideas clash.

So if you say what you think, you then run up against opposing ideas and there can be a clash — and there is value to that clash?

I assume most people would say that. Fifteen years ago, the discussion about gay marriage was entirely different. Now look where we are. It has evolved in 15 years.

So you’re saying gay rights/homosexuality was once taboo and yet it couldn’t be squelched and now that people have talked enough about it …

They’ve opened up and are saying, ‘Well yeah, what is wrong with this?’

Is there some sort of incongruity in a legal system where a 20-year-old could go to prison for having sex with their 17-year-old boyfriend or girlfriend, while an 8-year-old can buy a drink from a sexy, virtually naked woman in Forest Grove?

I don’t think anyone disagrees with the fact that the legislature has the ability to say children should be protected. There’s the question of how much should they be protected.

When does it become arbitrary the way ages are drawn? We have drawn a distinction that people younger than 18 should be protected from (intercourse). It’s a societal pronouncement put on the books that says we believe this is wrong and should be punished. But you can change that and we see it all the time. The state of Washington used to say that marijuana for the use of recreational purposes was illegal. Women and children were once seen as chattel. Society has evolved.

Someone may say, ‘My gosh, she’s exposing her breasts to this 8-year-old kid.’ Well, how about a mother breast-feeding her baby? Is there something wrong with that? Women used to be charged with crimes when they breast-fed their babies.

That’s where people would say ‘It’s the intent.’

It is no different, from my perspective, than the use of any other speech that focuses on sex or someone’s attractiveness to sell a product. It’s now part of our culture.

You aren’t necessarily saying they aren’t trying to arouse people but you can’t tell and they may not be.

Where does this line stop? It’s a very very slippery slope. I’m not saying there’s a hard and fast rule here. It’s an evolving standard. Society is changing. These same people (who object to Dream Girl) would probably say the Taliban is a little extreme on the other end. You say bikini baristas are immodest. I’m sure the Taliban would say you’re right and they should probably be wearing burqas and actually shouldn’t even be selling because women don’t belong there. That’s one of the beauties of the American experiment: it allows for a variety of different ideas to be discussed.

Pasty police on the alert

The bikini-barista wars in Forest Grove died down in August, after a jampacked city council meeting where Dream Girl owner Leah Sizemore announced she would instruct her Forest Grove baristas to wear bikinis, not the pasties that had outraged many community members, and after the city attorney explained the city was powerless to enforce a dress code on the employees.

But the issue has continued to simmer. Bikini-barista opponents continue staging monthly “cash mobs” at local stores as a form of creative protest. November’s cash mob was Saturday at the Crafty Fox, a craft botique/workshop located five blocks west of the coffe kiosk.

Then came the pasty photos. Emailed recently to the News-Times by an “undercover” Dream Girl opponent, the photos had been posted to the baristas’ photo-sharing Instagram websites and show them inside a coffee kiosk wearing pasties beneath scant coverings.

When questioned, Sizemore was livid.

“The fact that people are searching through my employees’ private instagram to find pictures not made for the general public and relating them to my companies (sic)policies is misleading,” she fired back in a Facebook message.

“If the pastie police have a RECENT PHOTO (time & date stamped) of one of our girls ACTUALLY SERVING COFFEE to a customer at our Forest Grove location I would appreciate seeing the photo.”

Two of the photos forwarded to the News-Times show pasty-clad baristas in the Forest Grove kiosk (one was from Hillsboro) but they are undated and neither shows the women serving coffee.

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