Adult Entertainment Overview

Specific Topics:

Secondary-effects doctrine

Adult bookstores

Pornography & obscenity

Nude dancing

By David L. Hudson Jr., First Amendment Scholar

November 15, 2002

First Amendment freedom of expression is directly at stake in the ongoing struggle between purveyors of adult entertainment and defenders of public decency.

Many people do not understand why pornography and nude dancing would be considered forms of protected expression, but in fact the First Amendment protects many forms of controversial speech and expression.

Supporters of the billion-dollar adult-entertainment industry argue that nude dancing, for instance, deserves no less First Amendment protection than more mainstream forms of performance. They say it contains the same elements of eroticism found in so-called “legitimate” theater and dance.

Yet cities and towns wield an array of restrictions that can be levied on adult businesses. These include restrictions on zoning, licensing, clothing, hours of operation and patron-performer buffer zones, to name just a few.

When adult-club owners fight these regulations in the courts, cities often pass new legislation, leading to more regulations and more lawsuits. The cycle has resulted in the development of a substantial body of First Amendment case law, which serves to address the continuing tension between government efforts to regulate the adult-entertainment industry and the industry’s attempts to claim First Amendment protections.

But it is clear from U.S. Supreme Court decisions that the Court believes the Constitution protects expressive conduct, and that it does not equate nudity with obscenity.

And though two types of pornography, obscenity and child pornography, receive no First Amendment protection, the First Amendment generally protects pornography that does not fall into these categories — at least for adult viewers. (Sometimes material is classified as “harmful to minors.”)

Even a 1986 Attorney General Commission Report on Pornography said that “not all pornography is legally obscene.” The question becomes which types of pornography cross the line into the unprotected areas of obscenity and child pornography. To put it another way, courts often struggle with whether pornography is too “hard core.”

Local officials, meanwhile, struggle with what they call the “secondary effects” of adult businesses — increases in crime and decreases in property values in the neighborhoods where they locate. Municipalities, officials say, must be allowed to prevent blight and red-light districts by regulating nude-dancing clubs and adult bookstores.

The fundamental First Amendment principles that apply in the context of adult content and entertainment are as follows:

• The First Amendment protects more than political speech. In 1948 the Supreme Court reversed the conviction of a New York bookseller who sold magazines that contained fictional stories of murder and bloodshed. In a ringing passage supporting freedom of speech, the Court wrote in Winters v. New York that it did not accept the argument that “the constitutional protection for a free press applies only to the exposition of ideas.” In an oft-cited passage, the majority declared:

“The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.”

• The First Amendment serves to protect speech on a wide variety of nonpolitical topics, including the arts, entertainment and movies (see Burstyn, Inc. v. Wilson,1952). The Court has extended free-speech protection to such different types of speech as literature, art, music, plays, commercial advertising, television and several types of expressive conduct. The First Amendment serves as the blueprint for personal liberty. To restrict freedom of speech only to political matters would severely narrow the scope of liberty.

• The First Amendment protects more than verbal communication. The most common understanding of “speech” is verbal communication. But people can communicate a message in various ways without verbalizing their thoughts. We communicate through the clothes we wear (or don’t wear), the signs we display, the bumper stickers we place on our vehicles and through certain types of conduct in which we engage.

• The First Amendment protects expression that many people may find offensive or disagreeable. The First Amendment, as part of the Bill of Rights, is counter-majoritarian. It protects the viewpoints of those in the minority from being oppressed by what Frenchman Alexis de Tocqueville termed the “tyranny of the majority” inDemocracy in America (1835). The First Amendment serves a particular purpose in safeguarding viewpoints and expression that challenge the existing state of affairs.

Adult entertainment may offend; it may fail to appeal to the higher intellect. But First Amendment protection for adult establishments affects more than disrobing dancers. It affects all who care about constitutional freedoms.