Bloomberg Grapples With Eleventh Hour Giuliani Sex Dicta

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

outside Manhattan.”

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

litigation.

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

Revolution goodbye.”

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

issues.

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.”