During his first month in office, Mayor Michael Bloomberg found a
few unwelcome surprises lurking in the west wing of City Hall. His predecessor
and mentor, it turns out, was a busy fellow in his last few days in office,
negotiating sweetheart lease deals for the city’s two baseball
teams and managing to retain control over his public documents. Now Mr.
Bloomberg’s advisers are quietly debating how to handle another last-minute
initiative at theheart of Rudy Giuliani’s legacy: an 11th-hour addition to the
former Mayor’s war on porn.
In late September, the Giuliani administration rushed a law
through the City Council that would allow the city to close down any clubs or
bars that allow nudity, as well as any video stores or bookstores that
demonstrate “an ongoing focus on sexually explicit material.” The law, which
passed unnoticed in the aftermath of Sept. 11, takes effect in the fall. But it
already has placed Mr. Bloomberg in a political bind, forcing him to decide
between his pro-free-speech posture and his fear of being pigeonholed as a
closet liberal bent on undoing Mr. Giuliani’s legacy.
Mr. Bloomberg can’t publicly discuss alternative policies-or be
seen as weakening enforcement-without being slammed by conservative groups as a
friend of pre-Giuliani urban disorder.
On the other hand, if Mr. Bloomberg upholds the law, and enforces
it vigorously, he will be forced, at a time of severe budget crisis, to deploy
scores of city employees for enforcement and teams of city lawyers to defend it
against the inevitable legal challenges. (Three lawsuits by owners of adult
establishments are already pending.) That, in turn, will put Mr. Bloomberg at
odds with the city’s First Amendment groups, many of which have been praising
the new Mayor’s openness.
“We hope Mayor Bloomberg’s respect for the First Amendment
extends to the most unpopular speech, but time will tell,” said Donna
Lieberman, the executive director of the New York Civil Liberties Union, a
longtime foe of Mr. Giuliani. “He has inherited a precarious legal posture; any
serious efforts to enforce this will be met with litigation. We hope that the
Bloomberg administration finds a way to navigate around this issue.”
“It’s really a lose-lose situation,” added Christine Quinn, a
City Council member for Manhattan’s West Side who voted against the bill. “If
he enforces Rudy’s law, the First Amendment groups and civil libertarians will
be very disappointed. But if he decides to review it and potentially change it,
that could alienate groups who supported him in the election, like the
Republican leadership on the City Council or the communities where he did well
Jerry Russo, a spokesman for the Mayor, said: “Our
criminal-justice coordinator is looking into the matter, and we have every
intention of enforcing the law and continuing to improve the quality of life
for every New Yorker.”
The new law is a revision of a less strict one passed in 1998. At
the time, inspectors fanned out across the city, posing for cameras as they
padlocked places with names like Wiggles, Peepland and the Love Shack. But a
year and a half later, after The New York
Times revealed that the law was riddled with loopholes allowing the clubs
to stay in business, the Giuliani administration quietly undertook to revise
the measure. Hence the current stricter law, passed in the final months of Mr.
Giuliani’s tenure. The problem for Mr. Bloomberg is that the new law may be a
legal time bomb that could force a choice between compromise and years of
City Hall observers will closely watch Mr. Bloomberg’s handling
of the lawsuits, because it provides a test case for the new administration’s
handling of one of the broadest powers of the Mayor: the corporation counsel’s
office. Under Mr. Giuliani, the corporation counsel-the city’s chief
attorney-became an instrument used to impose the Mayor’s formidable will on the
city. He turned lawyers into shock troops in the war on urban chaos, forcing
them into battle with street artists, smut peddlers and museums that offended
his sensibilities. It didn’t matter that these legal fights were often
unsuccessful, because their prime objective was to position Mr. Giuliani as a
lone defender of middle-class values against urban predators of all stripes and
hues. The war on porn was the centerpiece of this legacy; indeed, Mr. Giuliani
once remarked, with Old Testament righteousness, that purveyors of smut should
be driven “into the ocean.”
Privately, Mr. Bloomberg’s aides concede that such
fire-and-brimstone crusades run counter to the new Mayor’s leadership style and
the mood of his administration. Unlike his predecessor, Mr. Bloomberg is not a
lawyer by trade; he’s a pragmatist and a businessman who once enjoyed throwing
the occasional sex-themed party. He has already signaled his impatience with
his predecessor’s talent for waging crusades that result in court battles over
free-speech issues, scrapping Mr. Giuliani’s so-called decency commission and
recently remarking, “I am opposed to government censorship of any kind.” And
Mr. Bloomberg’s appointment of Michael Cardozo as corporation counsel was a
clear sign that he hoped to extricate the city from some of the legal hassles
which Mr. Giuliani bequeathed him.
“I’m not a particularly litigious kind of person,” Mr. Bloomberg
recently told reporters. “I think some things that the past Mayor took to court
would not be things that I would take to court.”
At the same time, Mr. Bloomberg’s advisers are well aware of the
political dangers of putting such vague directives into practice. Just after
announcing his intention to scale back city litigation, he found himself
hammered by a New York Post editorial
decrying his non-confrontational posture. The editorial complained that Mr.
Bloomberg has “made [it] clear that he has no love for litigation-and maybe no
stomach, either. If that turns out to be so, kiss the reforms of the Rudy
No Nudes Is Good News
The problem for Mr. Bloomberg is that the new law may turn out to
be more vulnerable to legal challenge than the old one. The previous law
outlawed clubs that devoted more than 40 percent of customer space to nudity.
The new law says that any establishment trafficking in any form of nudity can
automatically be closed. Courts generally look unfavorably on city laws which
drastically curtail free expression.
“The old law passed muster because it still allowed a certain
amount of free expression to exist,” said Mark Alonso, a lawyer for several
topless clubs. “The new law virtually stamps out that form of expression, which
we believe is unconstitutional.”
The success of this argument remains to be seen. Either way,
there are already signs that Mr. Bloomberg’s anti-litigation posture is
emboldening attorneys for the adult establishments. The lawyers-who represent
various factions in the adult business, from video stores to topless bars-are
considering suggesting compromise measures in order to forestall litigation.
According to sources, the club lawyers may suggest keeping current adult
establishments in business in exchange for severer restrictions on new ones.
“We would welcome an opportunity to discuss with the city any
alternative resolution that would avoid litigation,” said Herald Price
Fahringer, a lawyer for some 75 video and book stores. “Bloomberg seems to be
much more sensible than Giuliani. He doesn’t seem like he’d want to devote
scarce city resources to litigating and cracking down on small video stores.”
Mr. Alonso, the lawyer for several topless clubs, recently wrote
a letter to Mr. Cardozo that sketched out a number of ways for resolving the
current standoff. His letter argued that the law could be revamped to satisfy
neighborhood concerns while allowing clubs to stay in business and generate
hundreds of millions of dollars in revenue for the city. He suggested creating
an agency to oversee the establishments, such as exist in other cities.
A spokesman for Mr. Bloomberg declined to comment on the letter.
In many ways, the looming fight over the sex shops captures the
tension at the center of the Bloomberg Mayoralty. Mr. Bloomberg, who was
elected by an unorthodox coalition of Giuliani Democrats, Republicans and
minorities, has gone out of his way to show that he is a less confrontational,
more accessible Mayor than his predecessor. The challenge for Mr. Bloomberg has
been to build on that perception without being seen as soft on quality-of-life
Mr. Bloomberg’s use of the
corporation counsel will subject that political balancing act to a practical,
real-life test. “Bloomberg has already telegraphed that he’s not going to use
[the] corporation counsel simply as an offensive weapon,” said Richard
Schrader, a Democratic consultant who managed the 2001 Mayoral campaign of Mr.
Bloomberg’s rival, Mark Green. “If he makes good on that promise, it will show
that he is governing by his own lights-not out of some sort of anxiety about
being compared negatively to Giuliani.”
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