If a litigant presents Fred Biery, chief judge of the Western District of Texas, with a case that offers him the chance to write an opinion loaded with humor, history and double entendres, he’ll take that deal nearly every time.
That brings us to Biery’s latest opinion in 35 Bar and Grille, et al. v. The City of San Antonio. In this April 29 decision, Biery considers the plaintiffs’ request for a preliminary injunction against a San Antonio city ordinance that requires dancers at adult clubs to wear bikinis ― rather than G-strings and pasties ― if the clubs want to avoid the permitting process as "human display establishments." Biery described the plaintiffs’ fight as one against an “alleged naked grab of unconstitutional power” while the defendant argued that adult clubs must be regulated because they contribute to various “crimes” where they are located and “therefore need to be girdled.”
Biery even manages to send a shout-out in his opinion to the late “Miss Wiggles” by suggesting patrons would benefit from her exotic but fully clothed dances into her eighties ― and even included a photo in his opinion of a fully-clothed Miss Wiggles performing the splits on top of a chair ― until she died last year at the age of 90. Ultimately, Biery denied the plaintiffs’ request.
“To bare, or not to bare, that is the question. While the Court finds these businesses to be nefarious magnets of mischief, the Court doubts several square inches of fabric will stanch the flow of violence and other secondary effects emanating from these businesses. Indeed, this case exposes the underbelly of America’s Romanesque passion for entertainment, sex and money, sought to be covered with constitutional prophylaxis. Alcohol, drugs, testosterone, guns and knives are more likely the causative agents than the female breast, proving once again that humans are a peculiar lot. But case law does not require causation between nudity and naughtiness,” Biery wrote in denying the motion.
“Should the parties choose to string this case out to trial on the merits, the Court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending.”
— John Council