By David L. Hudson Jr., First Amendment Scholar
September 13, 2002
Supporters of the billion-dollar adult-entertainment industry argue that nude dancing contains the same elements of eroticism found in so-called “legitimate” theater and dance and therefore deserves no less First Amendment protection than those more mainstream forms of expression. City officials counter that adult businesses lead to crime and lower property values by debasing the quality of communities in which they locate; municipalities must be empowered to prevent blight and red-light districts, they say.
City officials 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 are prone to pass new legislation, leading to more lawsuits and more regulations. The cycle has resulted in the development of a substantial body of First Amendment case law and doctrine, which serves to address the continuing tension between governmental efforts to regulate the adult-entertainment industry and the industry’s attempts to claim First Amendment protections.
Even the U.S. Supreme Court has waded into the exotic-entertainment issue several times recently, with cases involving a Pennsylvania nude-dancing club, an adult-bookstore in Wisconsin and two adult bookstores in California.
Many people do not understand why the removal of clothes by a dancer is a form of protected expression, but in fact the First Amendment protects many forms of controversial expression. A review of basic First Amendment principles and the history of erotic dance shows why the Supreme Court has ruled that regulation of nude dancing triggers First Amendment protections.
The First Amendment protects far more than political speech and other verbal and nonverbal communication that many people may find objectionable. Nude dancing is one such type of expression.
Basic First Amendment principles that relate to nude dancing:
As recently as 2000, Justice Anthony Kennedy wrote in U.S. v. Playboy Entertainment Group that the “history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.”
Dancing: a form of expressive conduct
Dance has roots in ancient history. The Greek poet Euripides described dance in the Bacchae. Aristotle wrote in the Poetics that the purpose of dance is “to represent men’s character as well as what they do and suffer.” The modern-day belly dance has been traced back to the Egyptians of the 4th century, and in ancient Rome, dancing was an integral part of the annual festivals Lupercalia and Saturnalia.
“Dance has biblical roots,” according to one federal appeals court judge who cited the passages in a 1990 case, Miller v. Civil City of South Bend: “Let them praise his name with dancing, making melody to him with timbrel and lyre!” (Psalms 149:3) and “Praise him with timbrel and dance” (Psalms 150:4).
According to Lucinda Jarrett, author of Stripping in Time: The History of Erotic Dancing, “the censorious nature of Christianity has meant that sexual dance flourished in the East long before it emerged in Europe and America” (p. 2).
By the 19th century, however, Spanish gypsies were dancing the erotic flamenco in the cafes of Europe, and nude showgirls were performing in Parisian music halls, as David Cheshire has noted. England’s Windmill Theatre featured such shows as “My Bare Lady,” “She Strips to Conquer” and “Yes We Have No Pyjamas.”
So-called “leg shows” were introduced into the opera houses of the United States after the Civil War. Many Americans first witnessed Middle Eastern belly dancers at the 1893 Chicago World’s Columbian Exposition. Nude dancers graced the stage in Florenz Ziegfield’s revues in New York City during the 1920s, and cheaper burlesque shows could be found at less glamorous locations. While many of the latter were raided, Jarrett reports, the so-called “legitimate” theater survived unscathed.
The 1930s and ’40s featured famous striptease artists such as Blaze Starr and Gypsy Rose Lee, and the ’50s and ’60s witnessed the growth of striptease acts and topless go-go dancers. According to dance expert and cultural anthropologist Judith Hanna, “the 20th century placed the fully nude body into ‘high art’ theater dance — and moved exotic dance towards the mainstream.”
Hanna, who has served as an expert witness in numerous adult-club cases, told firstamendmentcenter.org in an interview in March 2001 that “nude dancing in any kind of performance both reflects and configures a society’s attitudes toward the body and its presentation.”
She explained: “Nudity in exotic dance communicates messages of freedom, independence, gender equality, acceptance of the body, modernity, historical tension between how the body was revealed in the past and is revealed now, empowerment, a break with social norms and challenge to the status quo.”
The courts and nude dancing
In early decisions, courts granted city officials broad discretion to prevent expressive activity that they considered lewd or indecent. However, some courts acknowledged that the process of determining whether or not something qualified as lewd was highly subjective. For example, in 1953 the future U.S. Supreme Court Justice Brennan wrote in an opinion for the New Jersey Supreme Court in Adams Theatre Co. v. Keenan: “The standard ‘lewd and indecent’ is amorphous. … There is ever present, too, the danger that censorship upon that ground is merely the expression of the censor’s own highly subjective view of morality unreasonably deviating from common notions of what is lewd and indecent, or may be a screen for reasons unrelated to moral standards.”
In that decision, the New Jersey court ruled that Newark city officials had violated the First Amendment by denying a theater license to someone they feared would stage indecent burlesque shows. The court reasoned that the performance of a burlesque show was a form of speech entitled to protection under the federal and state constitutions.
In the late 1960s, a few courts began to recognize that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. In its 1968 decision in In re Giannini, the California Supreme Court ruled that nude dancing was “potentially a form of communication protected against state intrusion by the guarantees of the First Amendment.” The California high court quoted the definitions of dance listed in the Encyclopedia Britannica and theCentury Dictionary, noting that “the very definition of dance describes it as an expression of emotions or ideas.”
The case that prompted this decision involved topless dancer Kelley Iser and Albert Giannini, owner of the nightclub where she danced. The two had been charged and convicted of willful and lewd exposure. Under state law, lewd conduct was considered obscene.
Giannini and Iser appealed their convictions, arguing that the dancing was a form of expression protected by the First Amendment. The state attorney general who argued against their position maintained that topless dancing has no social value and is obscene.
In deciding for the dancer and club owner, the California court noted that the First Amendment protects more than political speech. “Thus, the First Amendment cannot be constricted into a straitjacket of protection for political expression alone,” the court wrote in In re Giannini. “Its embrace extends to all forms of communication, including the highest: the work of art.” The First Amendment applies to many different communications media, including motion pictures and various other types of entertainment, said the court, which reasoned that Iser’s dance, no matter how vulgar, communicated a message to her audience.
The final question for the court was whether Iser’s dance constituted obscenity. The court threw out the convictions because the prosecution failed to introduce evidence about community standards, a factor that the U.S. Supreme Court had emphasized since its 1957 obscenity opinion Roth v. United States. “To sanction convictions without expert evidence of community standards encourages the jury to condemn as obscene such conduct or material as is personally distasteful or offensive to the particular juror,” the California court wrote in In re Giannini.
U.S. Supreme Court on nude dancing
The U.S. Supreme Court initially addressed the issue of First Amendment protection for nude dancing in its 1972 decision California v. LaRue. In 1970 California’s Department of Alcohol Beverage Control had issued rules regulating the type of live entertainment that could occur in businesses serving alcohol. The department was concerned by an increase in topless and bottomless dancing at bars. According to the department, increasing incidents of sexual misconduct (including prostitution and public masturbation) were being reported at many of these businesses.
The regulations prohibited certain activities at bars serving alcohol, including:
When local bar owners challenged the constitutionality of the regulations, the state argued that the rules were necessary to prevent sex crimes, prostitution and drug abuse.
The Supreme Court ruled 6-3 in favor of the regulations. Writing for the majority, Justice William Rehnquist noted that under the 21st Amendment, the states had broad power to regulate the distribution of alcohol within their borders. He did, however, hint that some of the dancing in the clubs merited constitutional protection when he wrote that “at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression.”
Justice William Brennan authored a short dissenting opinion in California v. LaRue, writing that the California regulations clearly applied to some expression deserving of First Amendment protection.
Justice Thurgood Marshall wrote a lengthier dissent, finding that the state of California could not regulate sexual performances unless they qualified as obscene. He wrote that “the empirical link between sex-related entertainment and the criminal activity popularly associated with it has never been proven and, indeed, has now been largely discredited.” Marshall also pointed out that the state could punish sex crimes and drug use directly, rather than engage in a “broadscale attack on First Amendment freedoms.”
The Supreme Court in its 1975 decision Doran v. Salem Inn again hinted that at least some nude dancing merits a degree of First Amendment protection. The case grew out of an ordinance passed by the town of North Hempstead, N.Y., that prohibited waitresses, barmaids and entertainers from exposing their breasts in public.
The Court ruled that a lower federal court had not abused its discretion in granting several bars a preliminary injunction prohibiting the town from enforcing its anti-nudity ordinance. Again writing for the Court, Justice Rehnquist noted: “Although the customary ‘barroom’ type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.”
Rehnquist distinguished the North Hempstead ordinance in Doran v. Salem Inn from the California regulations in LaRue by noting that the town ordinance applied to nudity in any public place, not just in liquor establishments. He also quoted with approval the lower court judge’s warning that the town’s anti-nudity law could apply to “the performance of the ‘Ballet Africains’ and a number of other works of unquestionable artistic and socially redeeming significance.”
The Court next addressed the constitutionality of restrictions upon nude dancing in its 1981 decision Schad v. Borough of Mount Ephraim. The town of Mount Ephraim, N.J., had passed an ordinance prohibiting all live entertainment within its borders. An adult bookstore was charged with violating the ordinance after it began offering live nude dancing in coin-operated booths. The bookstore challenged the constitutionality of the ordinance, arguing that the banning of non-obscene nude dancing violated free-expression rights.
The Supreme Court ruled 7-2 that the ordinance was unconstitutional. In an opinion by Justice Byron White, the majority ruled that the borough’s exclusion of live entertainment clearly violated the First Amendment. White wrote that “nude dancing is not without its First Amendment protections from official regulation.”
The city had argued that the ordinance was merely a zoning regulation that did not target the content of expression and that the law’s purpose was not to restrict expression but to avoid the problems associated with businesses that offer live entertainment, such as parking, trash and police protection. However, Justice White noted that other permitted businesses would cause these same problems. “We do not find it self-evident that a theater, for example, would create greater parking problems than would a restaurant,” he wrote.
Chief Justice William Burger and Justice Rehnquist dissented, finding that “a community of people are — within limits — masters of their own environment.”
“Citizens should be free to choose to shape their community so that it embodies their conception of the ‘decent life,’” Burger wrote.
The Schad ruling stands for the general principle that, while cities may zone adult businesses, they may not totally ban them.
In three cases, the justices had stated in passing that nude dancing was entitled to some degree of First Amendment protection. The justices confirmed this in the 1991 decision Barnes v. Glen Theatre, Inc.
Barnes concerned an Indiana law that criminalized public nudity and required dancers to wear G-strings and pasties. Even though the Court upheld the public nudity law, eight of the nine members recognized that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection.
A slender majority of the high court ruled against the dancers and the adult clubs. The five members of the majority wrote three separate opinions, making it difficult to understand the Court’s ruling.
Justices Rehnquist, Sandra Day O’Connor and Anthony Kennedy joined in a plurality opinion in Barnes. They recognized that “nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.”
They determined that requiring dancers to don G-strings and pasties was not a restriction on the First Amendment. They called it a “minimal restriction … [that] leaves ample capacity to convey the dancer’s erotic message.”
The plurality applied the O’Brien test and ruled that the government was justified in passing the public nudity law to protect the government’s interests in order and morality. They argued the law did not target erotic dancing but the “evil” of “public nudity.”
Justice Antonin Scalia said the law did not implicate the First Amendment but punished unlawful conduct; i.e., public nudity. He determined that the general law targeting public nudity was a generally applicable law that “is not subject to First Amendment scrutiny at all.”
In a separate opinion, Justice David Souter, the other justice in the majority, also applied the O’Brien test but took a much different approach than the three-justice plurality. He based his decision on a concept called “secondary effects,” which had grown out of adult-business zoning cases.
The secondary-effects doctrine provides that government officials may regulate nude dancing as long as their reason for regulation is to combat harmful effects allegedly associated with adult businesses, such as increased crime or decreased property values. Souter reasoned that the nudity ban advanced the government’s interest in combating harmful secondary effects allegedly associated with adult businesses.
Four justices — White, Marshall, Harry Blackmun and John Paul Stevens — dissented. They argued that the state had targeted exotic dancers because officials disliked nude dancing. “That the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine,” Justice White wrote for the dissent.
The four separate opinions in the 5-4 Barnes decision caused great confusion among the lower courts. One federal appeals court (in Triplett Grille, Inc. v. City of Akron, 1994) described trying to understand the case as “reading tea leaves.” Most lower courts, however, followed the reasoning of Justice Souter and used the secondary-effects rationale to regulate nude dancing.
Other restraints on nude dancing
Patron-performer buffer zones. Many municipalities have attempted to restrict contact between dancers and customers by establishing buffer zones. A few courts have upheld buffer zones of 10 feet, which eliminate table dances and lap dances.The 9th U.S. Circuit Court of Appeals upheld a 10-foot buffer zone between patron and performer in a Kent, Wash., ordinance. The club owners alleged that the buffer zone banned table dancing, which they argued was a unique form of expression.
The appeals court in Colacurcio v. City of Kent (1998) said it would “leave the fine-tuning of the distance requirement to the legislative body.” The appeals court reasoned that the zone was a narrowly tailored way to prevent illegal sexual contact and drug transactions.
The appeals court reasoned that the 10-foot requirement “does not rob dancers of their forum or their entire audience.” As to the club owners’ arguments that table dancing is a unique form of expression, the court replied that “uniqueness alone is insufficient to trigger First Amendment protection.”
Judge Stephen Reinhardt dissented, finding that table dancing was a unique form of expression compared to stage dancing. He reasoned that the club owners had presented enough evidence, including testimony from cultural anthropologist Hanna, that table dancing is “an altogether different form of expression that depends upon proximity and communicates a different and particular content.”
A few courts have struck down patron-performer buffer zones as being too restrictive. A federal court in Texas struck down a 6-foot buffer zone in Wichita County, finding in LLEH, Inc. v. Wichita County, Texas (2000) that the purpose of the buffer zone was to drive the plaintiffs out of business. The court rejected the notion that the buffer zone was necessary to combat the transmission of drugs: “The court finds absolutely no evidence to support a correlation between the drug trade and the six foot buffer requirement.”
The court concluded that the county’s interests in preventing illegal sexual contact could be satisfied by a 3-foot buffer. “A three-foot buffer zone would allow the Sheriff’s Department to easily and effectively enforce the no-touch rule without trampling on the protected message and/or expression of the dancers,” the court concluded in LLEH. However, in 2002 the 5th U.S. Circuit Court of Appeals reversed this ruling, finding that the 6-foot buffer zone was constitutional. The majority of courts have found likewise.
Hanna says buffer zones substantially change the message conveyed by the dancer. She points out that “performer-patron touch commonly occurs in the performing arts” and that “much of contemporary theater has been breaking down barriers between spectator and performer.”
The content of nude dancing. Some municipalities have gone so far as to censor the movements of exotic dancers. Many ordinances prohibit dancers from engaging in lewd or obscene activities. Some provisions go even further.For example, one Ohio administrative law prohibited dancers from committing “improper conduct of any kind, type or character that would offend the public’s sense of decency, sobriety or good order.”
A federal judge struck down this provision, ruling in the 1999 case J.L. Spoons, Inc. v. O’Connor that it “goes well beyond what is necessary” to further the state’s interest in combating the harmful effects of adult businesses. The judge reasoned that this law would outlaw pop music superstar Michael Jackson’s famous crotch grab. The judge also reasoned that this provision would give license to state agents to selectively punish certain dancers.
A Wisconsin city passed a comprehensive ordinance regulating nearly all facets of adult businesses. One provision prohibited dancers from “appearing in a state of nudity or depicting specified sexual activities.” The ordinance defined these activities as: “the fondling or erotic touching of human genitals, pubic region, buttocks, anus or female breasts.”
The 7th U.S. Circuit Court of Appeals ruled that under Barnes and Pap’s A.M., it was constitutional to prohibit totally nude dancing. But the appeals court said that banning specified sexual activities went too far. “By restricting the particular movements and gestures of the erotic dancer, in addition to prohibiting full nudity, [the provision] unconstitutionally burdens protected expression,” said the 2000 ruling in Schultz v. City of Cumberland.