Judge Lynn Adelman, a federal district court judge in Wisconsin, has ruled that strip clubs cannot be excluded from the federal Paycheck Protection Program. That’s the program designed to help businesses stay afloat during the Wuhan coronavirus pandemic.
The program rules out aid to businesses that “present live performances of a prurient sexual nature.” The Small Business Administration has long denied loans to such businesses, but its rule apparently has never been challenged.
Judge Adelman’s name may be familiar to some readers. He’s the ultra-leftist who wrote “a law review article attacking Chief Justice Roberts and President Trump. He claimed that the Roberts court has “contributed to ensuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.” He denounced Trump for having “the temperament of an autocrat.”
Adelman argued that courts should mold their decisions with an eye toward results so as not to contribute to economic inequality or make it harder for poor and working people to improve their economic circumstances.
Now, Adelman has struck a blow for equality for “gentlemen’s club” owners and strippers.
Personally, I’m sympathetic to any owner of a lawful business and his/her employees confronted with hardship due to the government-mandated shutdown of his/her operations. If I were in Congress, I would probably vote to extend relief to all such businesses. I would be disinclined to pick winners and losers, as the saying goes.
However, I disagree with the notion that Congress can’t help American businesses unless it extends aid to businesses whose product it believes, rightly or wrongly, is morally offensive and/or contrary to the public interest.
Judge Adelman based his ruling on the First Amendment. He stated that “the government has singled [strip clubs] out for unfavorable treatment based solely on the content of their speech.”
I wonder what Adelman would say about ordinances that allow liquor stores and law firms, but not churches, to conduct operations using acceptable social distancing rules. At least one federal judge found no First Amendment problem with that, notwithstanding the First Amendment’s protection of freedom of religion.
As for strip clubs, the claim that nude dancing is speech within the meaning of the First Amendment strikes me as absurd. (As I understand the law, this activity is considered protected speech, but only a weak form of it, such that ordinances placing limits on the activity have been upheld on public policy grounds.) But even if nude dancing is free speech, the government doesn’t need to subsidize it.
The government subsidizes some performance artists. It is not required to subsidize strippers.
To be sure, the purpose of the coronavirus subsidies is to help businesses in general, not help the worthy. But that shouldn’t mean Congress must help businesses it deems unworthy of receiving financial aid — and that have long been deemed unworthy by SBA — based on its view that such businesses perform a disservice to the community.
Another federal district court judge, Matthew Leitman in Michigan, is considering the same issue Judge Adelman decided. This account of the oral argument suggests that Judge Leitman is also troubled by the decision to exclude strip clubs from federal loans.
Leitman is an Obama appointee, but has not shown himself to be as far to the left as Adelman. Let’s see how he rules.