Five years after a Milwaukee vice squad officer shut down a traveling production of the gay-themed, off-Broadway hit “Naked Boys Singing” at the Milwaukee Gay Arts Center, the city has settled the resulting lawsuit with a $20,000 check delivered to the center on July 14.
The initial controversy broke in August 2005, less than five months after MGAC had opened with a Broadway revue. Fundamentalist street preacher Drew Heiss, tipped off by the extensive publicity campaign that preceded the performance of “Naked Boys,” filed an open records request that revealed MGAC had not applied for a small theater license with the Milwaukee City Council, which was then in summer recess and not scheduled to meet until September.
MGAC’s attorneys maintained that the center was exempt from the requirement because of its non-profit status, a position that was later affirmed by the city attorney’s office. But the city’s official stance was expressed in chilling terms by two visits to MGAC from members of the Milwaukee Police Department vice squad, followed by a telephone ultimatum.
“Naked Boys Singing” producer Mark Hooker told the Broadway-based publication Playbill that a man who identified himself as Milwaukee vice squad Det. Wilcox called him to warn that performing the play that evening was not advised.
“(Wilcox) was very gruff and I perceived his voice as threatening,” Hooker said. “He informed me if I wanted to be all high and mighty and act like I was above the law, that he could take me down to the police station if I sold even one ticket and have me booked and printed like any drug dealer who was breaking the law.”
Organizers briefly considered moving ahead with the performance as an act of civil disobedience. However, Hooker, who was living with AIDS, said the threat of jail time without access to medications was not a risk he could afford to take. So on Aug. 18, 2005, what was supposed to be the Milwaukee premiere of “Naked Boys Singing” became a press conference to announce a lawsuit against the city on First Amendment grounds of prior restraint.
With the help of ACLU of Wisconsin legal director Larry DuPuis, MGAC filed a Notice of Injury and Claim in federal court seeking $634,420 in damages. It stated that the group’s “rights were violated when the employees of the city selectively enforced the ordinance in violation of the constitutional rights of (MGAC) and the staff of (“Naked Boys Singing”) due to the organization’s focus on gay-related and AIDS-related causes.”
The play is based on themes rooted in the transformations that come with gay identity and individual struggles with AIDS, and supporters pointed out that most of the play’s critics had never heard or seen the play. They argued that the play’s award-winning musical score contains “naked truth messages” inherent to the universal struggle of being true to who you are.
After a meeting with about 50 LGBT community leaders in September 2005, Milwaukee Mayor Tom Barrett called for a review of the city’s licensing practices and the police department’s handling of the shutdown. Following a city attorney’s ruling that the ordinance should never have been applied to a non-profit organization, 16 highly successful performances played MGAC later that fall.
The Milwaukee show’s shut down was the fourth such occurrence in its now decade-long history, including similar incidents in San Juan, Puerto Rico, and Atlanta. Ironically, the first incident occurred in 2001 in the gay mecca of Provincetown, Mass., which later amended its local ordinance to prohibit all nude entertainment.
Some Milwaukee officials downplayed the significance of the case and the settlement. “There’s no admission of wrong-doing,” assistant city attorney Miriam Horwitz said. “The city settled as a practical matter.”
But advocates for MGAC disagreed.
“Requiring any theater to get a license before putting on a play comes dangerously close to the kind of ‘prior restraint’ on speech the First Amendment was designed to prohibit,” said ACLU of Wisconsin legal director Larry Dupuis, who was supported by cooperating Madison civil rights attorneys Steven Porter and Jeff Scott Olson in the case. “We are pleased that the city has clarified the process so that non-profits will know they are not required to get a license. However, we continue to believe that the city should amend its ordinance to limit the time the city has to issue any theater license. It’s too easy for the authorities to just delay giving the permit to performances they don’t like.”