Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, February 10, 1992 TAG: 9202100082
SECTION: VIRGINIA PAGE: A-3 EDITION: METRO
SOURCE: MARK LAYMAN
DATELINE: LENGTH: Long
A DOUBLE STANDARD AS SIMPLE AS ABC
"When I sell liquor, it's called bootlegging," the Chicago gangster Al Capone once complained. "When my patrons serve it on silver trays on Lake Shore Drive, it's called hospitality."My friend Don Whitesell didn't put it as elegantly as Al Capone. But then Don is not what you'd call an elegant guy; he's always preferred chinos and size XXL Hawaiian shirts to double-breasted pinstriped suits and white fedoras.
"I guess there are double standards everywhere," he said simply.
It was a Friday night, and we had just attended a benefit for the New River Valley chapter of the Radford University Alumni Association at the Norwood Room in downtown Radford. Pat Miller, an R-rated stand-up comedian from L.A., was the featured attraction.
I'm not a Highlander, but Don is. In fact, he used to own a bar - no, you wouldn't call his place a restaurant - down the street from the Norwood Room. He lives in South Carolina now, but he was in town for the weekend and invited me to the benefit.
The Norwood Room was packed when we arrived. The show had begun, so we paid the $3 cover charge, got drinks at the makeshift bar and stood in the back.
Miller isn't the sort of comedian I'd let my parents go see. His routine had a lot of jokes about masturbation and oral sex. The kind of jokes that helped make Richard Pryor and Eddie Murphy famous.
A few in the audience squirmed. But most laughed. So did we.
But after awhile I noticed Don wasn't laughing any more. "What wrong?" I asked.
"This is what I got busted for," he said.
Last May, a hard-core "thrash" band with a name that can't be printed in the newspaper played at Lucky's, the bar Don owned. There was a standing-room-only crowd. Of course, it was always standing-room-only at Lucky's.
Radford police and undercover Alcoholic Beverage Control agents - whose curiosity was aroused when they got complaints about the fliers the band had posted around town - stopped the show after the band's singer blurted out a string of four-letter words.
Don was charged with allowing an obscene performance at his bar; the judge took the charge under advisement for a year. State ABC regulations forbid bar owners from allowing obscene conduct or language on their premises.
All charges against the musicians eventually were dismissed. In some circles, they now are as famous - or should we say notorious? - as 2 Live Crew, the rap group that had a run-in with the law in Florida.
Lucky's was in financial trouble before the bust. But the bad publicity, the hassle of going to trial and the judge's warning that he didn't want to see Lucky's on his docket again hastened Don's retirement from the bar trade. He closed Lucky's and left town three days after the trial.
So on this Friday night, he couldn't quite believe it when he saw Radford Commonwealth's Attorney Randal Duncan - who prosecuted the charges against him and the band - enjoying the show in the Norwood Room.
"It's irritating," he said later. "I was charged with allowing profanities, vulgar language. Down the street, the same language was used and [Duncan] was laughing at it. Because it's a nice, polite, refined setting, they don't do anything about it."
Joe Steffen, the lawyer who represented Don and the musicians, offered another possible explanation. "It's easy to pick on college students" because they don't vote, he said. "But the crowd at a comedy show for Radford alumni is part of [Duncan's] constituency."
I called Duncan - who also is president of the alumni chapter - to ask what the difference was, legally speaking, between the show at Lucky's and the show at the Norwood Room.
That's not the sort of question a small-town prosecutor wants to hear after a long day of breathing fire and brimstone on drunken drivers, shoplifters and wife beaters. Especially when it comes from a reporter who always drank for free at Lucky's. But Duncan took a stab at it.
"It was a completely different situation," he insisted. "At the Norwood Room, you had a group of consenting adults. At Lucky's, what you had was a situation where the windows were open, the doors were open. Anyone going to and from Hardee's [or] to and from the theater could hear what was being said. Don should have taken the necessary steps [so] people who didn't want to be exposed weren't exposed."
The fact is, though, no "innocent bystanders" came forward at the trial to say they heard, or were offended, by the music at Lucky's.
This is the problem when you start chipping away at the First Amendment's guarantee of free expression, "the most dangerous of all subversions," as Justice William Douglas said: It raises sticky questions about where to draw the line.
Yes, there are reasonable limits: As most anybody who was at the Roanoke Civic Center auditorium the night after the comedy show would tell you, "Oh! Calcutta!" isn't suitable for children.
But when you bust a band in a beer hall, then wink at a comedian's raunchy routine in the Norwood Room - as Duncan did - well, Don got it right when he called that a double standard.
Mark Layman covers Roanoke County for this newspaper. This is the first of an occasional series of columns by Roanoke Times & World-News staff members.