Golden Pine owner claims dance there is protected free speech
By JEFF LESTER, Senior Writer, September 11, 2001
Note that the Golden Pine closed several years ago and the lawsuit with it.
ABINGDON - Pound's Golden Pine restaurant is a haven of traditional
folk dance, according to testimony from owner William Elam Jr. and
another man before a federal judge here Thursday.
Customers can be seen flatfooting, clogging and doing country line dances, all of which are "traditional" forms of dance in one culture or another, a witness contended in support of Elam's attempt to block Pound from requiring him to obtain a dance hall permit.
Further, Elam claimed, occasional paid deejays at the restaurant are creating a type of performance art that includes political satire.
In other words, what takes place at the Golden Pine is artistic expression protected by Constitutional free speech rights, making it exempt from the town's dance hall ordinance, Elam believes.
U.S. District Court Judge Glen Williams postponed a ruling Thursday on Elam's claims, giving the town and Elam's attorneys a total of 50 days to file further written arguments. The town agreed not to prosecute Elam in the Wise County circuit court for failing to seek a dance hall permit until Williams can rule on Elam's suit.
DANCE, ENTERTAINMENT, FREE SPEECH
Pound town attorney Gary Gilliam contends that the dance hall ordinance regulates businesses where people meet by chance, get out on the floor and dance for fun in ways that the U.S. Constitution does not recognize as free speech or artistic expression.
But Elam and another witness gave testimony Thursday aimed at showing that much of what happens at the Golden Pine is protected by the First Amendment and not subject to the ordinance.
Jim Webb, program director for public radio station WMMT-FM in Whitesburg, Ky., testified that he has frequently observed performances there by deejay David Gent, known to his fans as "Chickenman." Webb, a frequent customer, said he occasionally fills in for Chickenman as deejay.
Gent could not be present Thursday because he was in Wise County Circuit Court on an unrelated matter.
Under questioning by Elam attorney Michael Raulston, Webb said Chickenman presents an "entertaining, engaging" show and "has tremendous rapport with people." Along with spinning tunes, Chickenman occasionally gets up and dances or expresses politically-based humor, Webb said.
When asked, Webb agreed that the town's ordinance would have a "chilling" effect on those performances. When asked if barring entertainment at the Golden Pine would cause him harm, Webb said, "I would be greatly bothered by that."
Webb said he's been a customer for many years, including before Elam and his wife bought the restaurant, remodeled it and began working to keep customers orderly. "It's a fine establishment and everything they're doing makes it a better place," he said.
Asked what types of dancing he's seen there, Webb said he's observed clogging and flatfooting, both types of traditional Appalachian dance. He's also seen the waltz, the jitterbug and country line dancing, he said.
Gilliam asked where patrons dance, and Webb said they use the middle room of three rooms, a space set aside for dancing.
However, Gilliam suggested, it's people dancing to enjoy themselves and not in a performance on a stage. Webb said he doesn't know what customers think while they dance.
If Elam failed to seek a dance hall permit and people couldn't dance, that wouldn't stop other activity such as Chickenman's show, would it? Gilliam asked. Webb said a lot of customers might stop coming.
Elam testified that if dancing was not allowed, his patrons might stay only to eat dinner, then head to Norton for further entertainment.
Elam attorney Susan Oglebay asked Elam if he thinks the town's ordinance would prohibit Chickenman's performance. After reading the ordinance language for several minutes, Elam said, "I don't know how to answer the question."
Is the Golden Pine a theater? Oglebay asked. Elam said no. For that matter, Oglebay asked, are the streets of Pound a theater during town festivals when artistic events take place? No, Elam said, adding that he can't see the difference between that and a performance at his business. Elam said Chickenman performs three nights a week and is a major part of the restaurant's attraction.
Isn't it true, Gilliam asked, that customers can get up and dance six nights a week? Elam said, "That's up to them." Gilliam asked Elam if he understands that the ordinance addresses two types of dancing - constitutionally protected artistic expression and non-protected recreational dance. Elam said he understands.
Why, Gilliam asked, hasn't he applied for a dance hall permit? Elam said the ordinance doesn't tell him he has to apply.
WHAT HAPPENS NEXT
Gilliam agreed not to prosecute Elam in state court on charges of operating without a permit, or to file any new charges, until Williams can rule on the lawsuit, Raulston said after the hearing.
According to Raulston, Williams gave the town 20 more days to present added evidence, after which Elam has 20 days to respond and the town gets another 10 days to respond to Elam.
Responding to a reporter's questions, Raulston acknowledged he doubts it's possible for any Virginia locality to draft an enforceable dance hall ordinance.
There may be no such thing as "recreational" dance which does not express some artistic statement or cultural tradition, he claimed. Country line dancing is an expression of tradition, he said.
What if several people in a nightclub get up and do the Electric Slide disco dance? a reporter asked. Raulston said yes, that too is arguably the "tradition" of a group.
What about people who simply gyrate without an apparent pattern? That, Raulston said, could be considered akin to certain types of traditional African dance.
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