The successful creation of a platform for debate: Utah Chief Justice Christine M. Durham's legacy embodied in American Bush v. City of South Salt Lake.

• Author: Furse, Evelyn J.
• Position: Chief Judge Lawrence H. Cooke Sixth Annual State Constitutional Commentary Symposium: The State of State Courts

The jurisprudence for which we should remember Chief Justice Christine M. Durham is her insistence on the consideration and interpretation of the Utah Constitution as separate and distinct from the Federal Constitution. Chief Justice Durham pioneered the interpretation and application of the Utah Constitution. While Chief Justice Durham's interpretations do not always prevail, she has created a vibrant platform for argument. American Bush v. City of South Salt Lake (1) provides the best evidence of Chief Justice Durham's legacy.

While the Utah Supreme Court had previously interpreted the State Constitution independently in State v. Earl, (2) the Court, speaking through then-Justice Durham, invited those arguing in Utah courts to raise state constitutional claims in addition to federal constitutional claims--particularly in the criminal arena--indicating the Utah Supreme Court's willingness to interpret the Utah Constitution independently and giving guidance on how to make such arguments with reference to State v. Jewett. (3) Jewett offers a variety of sources for constitutional argument--history (legislative, social, or political), text, sibling state interpretations, policy (economic or social good), prudence, structure, ethics. (4) After a few years, Justice Durham penned an article for the Utah Bar Journal, instructing Utah attorneys on Utah Constitutional argument. (5) The Utah Supreme Court, through Justice Durham's majority opinion, further elucidated Utah constitutional interpretation in West v. Thomson Newspapers, (6) explicitly embracing the primacy model for state constitutional interpretation in the defamation context. Under this approach, when a case presents a constitutional issue, the court analyzes it under the Utah Constitution, only looking to the Federal Constitution if the Utah Constitution does not resolve the issue. (7) In the years since, the Utah Supreme Court has continued to adhere to the primacy model. (8) Throughout this time, Justice Durham's commitment to Utah constitutional interpretation remained a constant for a court that has experienced significant turnover. (9) The American Bush case provides an example of the vibrancy of state constitutional debate in Utah.

In May 2001, the South Salt Lake City Council passed a new sexually oriented business ordinance. (10) An existing company, American Bush, had operated nude dancing businesses and wanted to continue to do so. (11) However, the new ordinance only permitted semi-nude dancing. (12) Because the United States Supreme Court has held that the United States Constitution offers only limited free speech protection for exotic dancing and allows governments to require minimal dress on dancers, American Bush sought solely the protection of the Utah Constitution. (13) American Bush claimed speech protection under article I, sections 1 and 15 of the Utah Constitution which provide as follows:

[Article I, section 1:] All men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; to worship according to the dictates of their consciences; to assemble peaceably, protest against wrongs, and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right.

[Article I, section 15:] No law shall be passed to abridge or restrain the freedom of speech or of the press. In all criminal prosecutions for libel the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. (14)

The text of these provisions differs from the United States Constitution's speech protection:

Amendment 1: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (15)

The district court denied American Bush's motion for summary judgment, granting South Salt Lake summary judgment instead. (16) American Bush appealed to the Utah Supreme Court, which affirmed the district court with four separate opinions. (17) Only five Justices sit on the Utah Supreme Court, and the court usually is unanimous in its decision-making. (18) Justice Parrish wrote for the majority, holding that "the provisions of the Utah Constitution that guarantee Utah citizens' rights to 'communicate freely their thoughts and opinions' do not extend protection to nude dancing in sexually oriented businesses." (19) Justice Durrant wrote to expand on his view of "the proper method to follow when interpreting our state constitution." (20) Chief Justice Durham concurred in part and dissented in part, specifically explaining how she reached her opinion that the ordinance violated the Utah Constitution's speech protections. (21) Justice Nehring dissented, taking yet another view of the Utah Constitution's speech protection. (22)

This article examines the interpretations provided in each of these opinions to demonstrate the robust debate possible even where there is a "poverty of both Utah case law and scholarly analysis of the history and meaning of the freedom of speech provisions of the Utah Constitution." (23)

1. THE MAJORITY OPINION

   Importantly, the majority begins by reaffirming the Utah Supreme Court's adherence to the primacy model of state constitutional interpretation. (24) By employing the primacy model the Utah case law interpreting provisions of the Utah Constitution should grow over time, providing guidance for future Utah courts. (25) The majority sets forth the following approach for answering the question posed: first decide whether the state constitution protects nude dancing; if it does, then consider whether the ordinance interferes with the right impermissibly. (26) As with all of the opinions, the majority first looks to the Constitution's text. (27)

   The majority notes that while it looks first to the plain meaning of text, the dictionary definitions of the words by themselves do not suffice and should be interpreted, instead, with "historical evidence of the framer's intent." (28) To determine the framers' intent, the majority looks to common law, the state's particular traditions, contemporaneous court decisions from sister states, and the interpretation of the United States Constitution at the time Utah adopted the provision at issue. (29) The majority specifically footnotes its disdain for the consideration of policy arguments in interpreting the Utah Constitution, unless the policy arguments help the court determine the framers' intent. (30) The majority appears to acknowledge that the framers' intent really functions as a proxy for the intent of the citizens who voted the constitutional provision into effect. (31) To determine the framers' intent with respect to article I, sections 1 and 15, the majority cites to Thomas M. Cooley's book, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the State of the American Union (1896), which the Official Report of the Proceedings and Debates of the Convention quoted in part. (32) The majority concludes that because the Cooley treatise states that state constitutions are '"based upon the preexisting condition of laws, rights, habits, and modes of thought' then extant ... it is to these sources that [the court] must look to determine the proper scope of the freedom of speech." (33)

   In considering the text, the majority reads both section 1 and section 15 of article I together because they both address freedom of expression. (34) The majority notes, however, that the limitation on governmental laws restricting the freedom of speech is irrelevant if nude dancing does not constitute communication. (35) In interpreting what "communication" means, the majority insists that it must consider what an abuse of the right to communicate is. (36) Noting that the plain language of section 15 defines criminal libel without regard for the truth of the statement, the court determines that the Utah Constitution protects less speech than the Federal Constitution, which the United States Supreme Court has interpreted to prohibit punishment for true speech regardless of the motives for such speech. (37) The majority then goes into a lengthy discourse about the history of free speech and legal theory, concluding that Utah's framers--by including the phrase "responsibility for abuse" in section 1 of the article I--intended to adopt William Blackstone's view of freedom of speech, namely a conservative view allowing state regulation of speech. (38)

   As further support for its conclusion that Utah's Constitution protects less speech than the Federal...