Gender Claim on Topless Law Rejected

Gender Claim on Topless Law Rejected by 2d Circuit Court

New York Law Journal
March 24, 1998

BY BILL ALDEN

A MANHATTAN federal appeals panel has rebuffed the first challenge to New York City's strict zoning regulations for sex establishments, rejecting arguments that a section in the law which applies to female, but not male, topless entertainment violated the equal protection rights of women dancers.

In upholding a clause which includes the display of the female breast but not the male breast in its definition of sexual activities, a three-judge panel of the U.S. Court of Appeals for the Second Circuit said the provision did not reflect gender bias.

Writing for a unanimous court in Buzzetti v. City of New York, 97-7585, Circuit Judge Pierre N. Leval declared that "we must recognize that the public reactions to the exhibition of the female breast and the male breast are highly different"

Noting that the city's objective is "not to oppress either gender's sexuality but to control effects that flow from public reaction to the conduct involved," Judge Leval said it was "permissible" to classify "female toplessness differently from the exhibition of the male chest."

The zoning law is "substantially related to the city's important objectives in controlling the secondary effects of adult entertainment," the judge added.

Circuit Judges Ralph K. Winter and Dennis Jacobs joined in the panel's ruling which was issued late Friday and made public Monday.

The ruling came just days after another Second Circuit panel continued a stay on the enforcement of the ordinance in Amsterdam Video v. City of New York, a challenge brought by sex shop owners to that part of the law which keeps adult establishments 500 feet from churches, schools or residential areas (NYLJ, Mar. 18).

Judges Leval and Jacobs sat on the panel that issued the stay in the Amsterdam Video case. While it is not certain that the two judges will sit on the final arguments in that case, which are scheduled for late April, the reasoning in Buzzetti could bolster the city's position in the other challenge.

Last month, the New York Court of Appeals approved the ordinance in Stringfellow's of New York v. City of New York, finding that the law was aimed only at "ameliorating the negative social consequences of proliferating adult uses" and not at suppressing protected expression (NYLJ, Feb. 25).

No Discrimination

The case that prompted the panel's ruling on Friday was brought by Adele Buzzetti, the sole proprietor of the Cozy Cabin, a small Queens topless bar near La Guardia Airport, and one of the club's dancers, identified as Vanessa Doe.

The women contended that the zoning law, which was scheduled to take effect in October 1996, violated the Equal Protection Clause of the Fourteenth Amendment by discriminating against women.

They also argued that the law ran afoul of the First Amendment by imposing viewpoint-based restrictions on constitutionally protected expression.

Last April, though, Southern District Judge John S. Martin. Jr. denied the women's bid for an injunction, declaring the law reflected the reality that the effects on communities of clubs with bare-chested female dancers are different that those stemming from clubs like Chippendales, which feature bare-chested men (NYLJ, April 9).

Judge Martin also rejected the plaintiffs' First Amendment arguments, maintaining that the law did not "unreasonably limit alternative avenues of communication."

In addition to agreeing with Judge Martin that the law did not discriminate against women dancers, the panel approved his free speech analysis.

Declaring that the law is a "content-neutral time, place and manner regulation," which is justified by "substantial government interests," Judge Leval concluded that it does not violate the First Amendment.

Ivan S. Alter of Alter & Alter represented Ms. Buzzetti and Ms. Doe. Assistant Corporation Counsel Elizabeth S. Natrella, Leonard J. Koerner and Albert G. Fredericks represented the city.