Nude dancing and the First Amendment: A history

During a recent meeting between City Manager Greg Kisela and several Destin pastors, the question came up of how a strip club can claim protection under the First Amendment.

“Many people do not understand why the removal of clothes by a dancer is a form of protected expression,” legal writer David Hudson says on the firstamendmentcenter.org Web site, “but in fact the First Amendment protects many forms of controversial expression.”
Hudson said courts have extended freedom of speech principles to nude dancing because the First Amendment:

•Protects more than political speech.

•Protects not only spoken and written words but symbols, images and gestures including painting, photography, music, dancing and tattooing.

•Protects sexual expression — provided it isn’t legally found obscene — even if some people are offended.

In 1953, Hudson writes, New Jersey’s Supreme Court ruled that Newark, N.J., had violated the First Amendment by refusing to license a theater the city thought would stage a burlesque show. Justice William Brennan, later a member of the Supreme Court, wrote that censoring material because the government considered it “lewd and indecent” left too much leeway to apply censors’ personal views regardless of the prevailing community standards.

In 1972, the U.S. Supreme Court took up the issue in California v. LaRue, which concerned restrictions on alcohol in businesses that featured nude dancing, adult films and other forms of erotica. The court supported the regulations, but said at least some of the performances were protected by the First Amendment. Justice Thurgood Marshall went further in his dissent and said the state couldn’t regulate performances unless they were legally obscene.

In 1981, the court ruled against Mount Ephraim, N.J., which had charged a business  offering nude dancingwith violating an ordinance banning all live entertainment. The Supreme Court threw out the ordinance by a 7-2 decision, which Hudson says established the principle that sexually oriented businesses may be zoned and regulated, but not completely banned.

In 1991’s Barnes v. Glen Theatre, Inc., eight of the nine judges said that nude dancing was at least “marginally” protected under the First Amendment, but the majority ruled that requiring dancers to wear G-strings and pasties — because of a law banning all public nudity — did not violate the First Amendment. The justices’ written opinions on why this was so diverged widely and lower courts have had trouble applying the decision.

Cities have tried a variety of approaches to control nude dancing within the First Amendment, including buffer zones between patrons and dancers, restrictions on certain dance moves and complete nudity bans. Most communities emphasize that their concern is the “secondary harm” caused by adult entertainment — according to various government studies — triggering an increase in crime.

Different state courts and federal appeals courts have come to different conclusions on the various approaches, based on interpretations of precedent and state constitutions. In Arizona this year, for instance, in a case involving restrictions on the hours sexually oriented businesses can operate, the state Supreme Court ruled that the Arizona Constitution required a higher level of scrutiny for such regulations than the U.S. Constitution did.