RULING COULD SEE RAVES REGAIN THEIR GLOW

Ban Is Lifted After ACLU Files Lawsuit

A federal judge on Thursday essentially lifted a ban on glow sticks and
pacifiers at the State Palace Theater, which had restricted the items and
other rave-related accouterments after prosecutors accused party promoters
of spurring illicit drug use at the all-night, electronic music revelries.

During a hearing, U.S. District Court Judge G. Thomas Porteous Jr. blocked
the ban by issuing a preliminary injunction, a temporary measure preceding
future court hearings and a possible trial. The American Civil Liberties
Union and its clients, who had filed a lawsuit Tuesday, claimed a small
victory for the constitutional rights of the thousands of party-goers who
flock to the Canal Street theater, where many nights belong to the laser
lights and techno beats of the once-underground music scene.

The decision came on the eve of a scheduled two-night rave that starts at
the Palace tonight. Now it is up to the promoters and theater manager
Robert Brunet to decide whether to let glow sticks, pacifiers, Vicks Vapo
Rub and dust masks grace the dance floor.

"We're going to glow like we've never glowed before," said Clayton Smith,
23, a rave performer who joined two other men in the ACLU lawsuit against
U.S. Attorney General John Ashcroft. The suit demanded an end to searches
of party-goers at the theater door and seizures of glow sticks and other
items, claiming the ban tramples party-goers' rights to express themselves.
If the Palace permits, Smith said he will perform his dance routine,
complete with glow sticks, at this weekend's parties. Neither Brunet nor
his attorney could be reached for comment Thursday. But rave promoter
Donnie Estopinal, of Disco Productions, said the ban on glow sticks has
kept artists such as Smith from performing at the Palace because the items
are part of their act.

The U.S. attorney's office said it will decide whether to appeal Porteous'
ruling to the 5th U.S. Circuit Court of Appeals. Meanwhile, hearing dates
were set for December.

The ban began months ago at the Palace as Brunet, his brother Brian Brunet
and Estopinal faced federal narcotics charges under the so-called "crack
house" law, which forbids anyone from maintaining a building for the
purpose of drug sales.

The case ended in a plea bargain on June 13 that kept the men from facing
criminal charges and let Brunet's company, Barbecue Inc., take the blame in
exchange for a $100,000 fine and a promise to do everything possible to
keep drugs like ecstasy -- and items prosecutors believe go along with it
- -- out of the old theater.

Assistant U.S. Attorney John Murphy argued Thursday that the ban on glow
sticks was Brunet's idea and not some form of state-sanctioned speech.

"They and their attorneys came to the government and said, 'We want to stop
drug use.' " he told Porteous. "It was the defendants saving themselves
from individual prosecutions.

"They have a real interest in maintaining order," Murphy said of the rave
promoters. "These restrictions are working, and they're not offensive
restrictions that should be undermined in court."

Murphy also said the ACLU, as a third party, was out of line in trying to
change a criminal sentence. Glow sticks and pacifiers are not drug
paraphernalia on their own, but when they appear at rave parties, they
become tools of enhancing the high of ecstasy, prosecutors told Porteous.

"Does that facilitate the taking of drugs or saving your teeth?" asked
Porteous, a Clinton appointee. That prompted prosecutors to explain the
dual life of rave favors.

Pacifiers can be used to defray teeth-grinding and jaw-clenching associated
with ecstasy. Glow sticks can be rubbed over eyes to heighten the pill's
sensory rush. And Vicks Vapo Rub often is smeared inside dust masks so
dancers can open their nasal passages for a stronger rush.

What seems like a silly measure is in reality stopping the flow of ecstasy
into the Palace, prosecutors said. But despite the good intentions, the
ACLU lawyers said, the ban violates the First Amendment and constitutional
protection from unfair searches.

Graham Boyd, an ACLU attorney from New Haven, Conn., compared the glow
stick stipulation in the plea bargain to the government making a defendant
agree to perform illegal searches and investigations for free to avoid
prosecution.

Smith, a former member of the Air Force's elite drill team, told Porteous
about a less lurid use of the glow stick. Clean cut in his gray suit and
dress shoes , he said the drill team used the luminescent wands in their
formations. On his own, the electronic-music fan has invested months of
practice time on his performance.

"I'm against drugs just like anybody else," Smith said after the hearing.
"But when the government decided to take away our ability to dance the way
we want, I was appalled."