Daubert and the "Two-Foot Rule"
The City of La Habra, California, passed an ordinance requiring "adult cabaret dancers" to remain two feet from patrons during offstage performances. A number of dancers felt that the ordinance affronted their right to freedom of expression under the First Amendment, and so they joined with the owner of a nightclub establishment in bringing a constitutional challenge. Was the ordinance truly motivated by a desire to prevent crime and stop the spread of sexually transmitted disease? In passing the ordinance, the City relied on numerous studies and reports linking such secondary effects to adult businesses. The dancers dismissed the studies as methodologically flawed.
But you don't need Daubert-quality evidence to ban lap dancing -- or so the Ninth Circuit has held. "While we do not permit legislative bodies to rely on shoddy data, we also will not specify the methodological standards to which their evidence must conform."
See Gammoh v. City of La Habra, No. 04-56072 (9th Cir. Jan. 26, 2005) (Tashima, Fisher, & Tallman, JJ.).
But you don't need Daubert-quality evidence to ban lap dancing -- or so the Ninth Circuit has held. "While we do not permit legislative bodies to rely on shoddy data, we also will not specify the methodological standards to which their evidence must conform."
See Gammoh v. City of La Habra, No. 04-56072 (9th Cir. Jan. 26, 2005) (Tashima, Fisher, & Tallman, JJ.).
2 Comments:
There is a tremendous difference between legislatures and courts. Legislatures have the plenary authority to take action as they see fit, subject to recognized restrictions. Courts, by contrast, have only a limited role to play in our legal system.
Legal rules on the admissibility of evidence must control courts, but they cannot (based on separation of powers concerns) control legislatures.
I see nothing wrong with a legal system that requires that courts and litigants adhere to restrictions which do not apply to legislatures in the exercise of their function.
- yclipse
Agreed that imposing Daubert's strictures on legislatures is an undesirable and unworkable program. In this particular context, First Amendment doctrine already defines levels of scrutiny appropriate for different types of legislative enactment, and that system seems to work passably well. One thing this decision illustrates, in fact, is that Daubert does not supply the only possible prism through which to evaluate the reliability of complex factual judgments.
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