Lawmakers must change tactics on trafficking fight

If state elected officials wish to protect younger adults from sex trafficking, they likely will have to take another approach than a challenged law that prevents 18- to 21-year-olds from employment as nude dancers.

Act 395 passed this year that disallows those under 21 from engaging in that activity in establishments that serve alcohol. Three women anonymously sued, saying the age limit arbitrarily proscribed their rights of free expression. Spuriously, they claim failure of equal protection because they allege the law singles out females, but statute does not limit the restriction to women.

U.S. District Court Judge Carl Barbier granted injunctive relief to them, with the case pending. Although the state points out, in seeking to have the plaintiffs’ names revealed, the contradiction of using pseudonyms because in the original filing the women claim they do not see their constitutionally-protected activity as stigmatic yet claim stigmatism from having their names known, that does not alter the basic jurisprudence here that indicates the law would be struck down on the precedent that nude dancing by adults has constitutional protection as a form of expression, whether for compensation.

While the state has argued the limitation would protect vulnerable individuals from sexual trafficking, at present case law with uniformity declares no justification exists to limit free expression of any adult through performance in various stages of undress. A federal court voided a similar Colorado statute in 1997, another similar one faces court action in Florida, and efforts to pass like laws in other states all foundered in recent years over concerns about constitutionality.

So if adult free expression collides with the state’s interest in protecting more vulnerable adults, it likely will have to undertake a less intrusive approach. Neighboring Texas provides a model here with its “pole” tax. After years of challenges that went all the way to the U.S. Supreme Court, it had affirmed its practice of requiring remission of $5 per patron in an establishment that offers live nude entertainment and that serve or allow customers to bring in alcohol. The state expects to collect around $11 million annually, dedicating the proceeds first to helping victims of sexual assault and after a certain amount to offset funding of health insurance for low-income individuals.

Louisiana could take a similar approach, mimicking the Texas mechanism that requires clubs to keep a count of patrons or have the state come up with a figure if they fail to follow the law, and spend the funds on programs dedicated to combatting human trafficking. That may not serve as an effective gatekeeper as a minimum age standard to keep vulnerable individuals away from influences that could ensnare them, but at the same time it recognizes that age alone among legal adults should not disqualify people from working in this capacity and that those older than 21 also can fall prey to trafficking and this approach can reach these individuals.

Naturally, clubs will loathe this and may try to fight it, but such a law has firm legal ground. Legislators should expect the present law to fall and thus should prepare themselves to pass something like described here next spring if they wish to accomplish the goal behind the endangered statute.