Art Gallery Sues Idaho Police for Old-Fashioned Liquor Law After Burlesque Bust

Are the state's laws antiquated and unconstitutional?

Anne McDonald performing as Frankly Frankie. Courtesy of the complaint.

Idaho artist Anne McDonald is suing the state police for censuring her artistic expression and infringing upon her free speech by fining her for a partially nude burlesque performance, reports Courthouse News. Her lawyers include the American Civil Liberties Union of Idaho.

The performance in question, where alcohol was allegedly sold, took place on March 18 at Visual Arts Collective, a Garden City, Idaho, art gallery and performance venue. According to the complaint, which was filed in Idaho Federal Court on September 15, two undercover state police detectives attended the show and served the gallery with an administrative violation notice in May threatening to cancel its liquor license.

The detectives found McDonald’s act to be in violation of Idaho Code Section 23-614(a), which states that businesses that sell alcoholic beverages are not allowed to have employees wearing clothes that expose “any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals.”

Idaho's Visual Arts Collective. Courtesy of the complaint.

Idaho’s Visual Arts Collective. Courtesy of the complaint.

Further subsections of the law also prohibit any employee who “touches, caresses or fondles the breast, buttocks, anus or genitals of any other person,” or allows themselves to be so touched, and from performing or simulating sexual acts. Also prohibited is the screening of any films or still pictures of a similarly sexually explicit nature.

The gallery agreed to pay a fine and have its liquor license suspended for 20 days, but it is now fighting back.

“Idaho’s liquor laws are antiquated and unconstitutional,” alleges the suit. “The statute casts an incredibly wide net that captures Tony [A]ward winning plays, acclaimed ballets, and even gestures as staid and familiar as ‘Elvis’ gyrating hips’ within its vague prohibitions.”

The suit claims that the gallery and its co-plaintiff, the Alley Repertory Theater, “produce and host some of the most thought-provoking and interesting visual and performing art in southwestern Idaho,” and that Visual Arts Collective has received grants from organizations including the Robert Rauschenberg Foundation.

Anne McDonald performing as Frankly Frankie. Courtesy of the complaint.

Anne McDonald performing as Frankly Frankie. Courtesy of the complaint.

McDonald performs under the name Frankly Frankie in the Frankly Burlesque show at the gallery, which, per the complaint, has a “classic vaudeville feel” while addressing “gender issues, sexuality, gay rights, and politics.” McDonald’s act involves thongs and pasties, which stand in technical violation of the statue, but the complaint maintains that “no part of the evening’s performance was obscene.”

“My breasts are being made into political objects. They are part of my body and the discretion on how they are shown within the context of performance should be mine,” McDonald said in a statement released by the American Civil Liberties Union.

The gallery relies on alcohol sales to stay in business, so “is now training all artists who perform at its venue to comply with the severe artistic restrictions [of the] Idaho Code.” The complaint rails against the necessity of such self-censorship, and seeks to have the statute revoked.

“For eleven years VAC has strived to encourage artists and the community to continue in the discovery of artistic expression,” added gallery co-owner Sam Stimpert. “This antiquated law runs afoul of everything we have worked to achieve and asks us as a business to violate the first amendment and civil rights of not only the artists and non-profits we serve but also our patrons.”

artnet News had reached out to the Idaho State Police, and was directed to the Idaho Attorney General’s office, which declined to comment on pending litigation.

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