Welcome to Part II of the Striptease & the Law series! In Part I, we discussed the constitutional foundations of striptease, including the basics of why nude and partially-nude dancing are protected by law and just how far those protections extend.
We're gonna dig a lot deeper into striptease case history, and the legal basis for states regulating adult businesses - particularly, businesses that allow striptease and partially-nude dancing. This section is heavy on the law, so please reach out with any questions, concerns, comments, etc. I'm always happy to clear things up or write addendums with even more information!
The long and short of it is this:
The First Amendment will always prohibit states and municipalities from placing outright bans on striptease, but any state or municipality can regulate the time, place, and manner of sexually-oriented business operations.
Many jurisdictions apply time, manner, and place restrictions differently. We all know someone, or know of someone, who has gotten in trouble with the law just for performing burlesque and striptease. What is a-okay in one state, may land someone in hot water in another state.
Nothing in this blog post should be taken as legal advice, but I'm more than happy to provide lots of background information on the law in case anyone finds themselves party to a lawsuit. Most legal challenges to these restrictions are filed in federal court since it's mainly a First Amendment issue, so all of the cases discussed are from the U.S. Supreme Court. I am not Bluebooking or providing proper citations since I just consider this a blog draft -- please don't take away my librarian card. :-)
Time, Manner, and Place Restrictions
The legal precedent for establishing local ordinances restricting sexually-oriented businesses has foundations in a few Supreme Court cases. In Heffron v. International Society for Krishna Consciousness (1981), the Court held that such restrictions must satisfy four requirements. The restrictions must: (1) be content neutral; (2) not covertly discriminate against certain forms of speech; (3) serve a significant government interest; and (4) not foreclose alternate forums for the regulated speech. Remember, these restrictions cannot be used to ban nude dancing entirely -- just to place restrictions on where, when, and how it’s performed.
This four-part test has roots in United States v. O'Brien (1968), and is fleshed out even more in City of Renton v. Playtime Theatres, Inc. (1986). The essential questions every government must answer before regulating striptease are: 1. Is the government's interest in shutting us down unrelated to suppressing the content of the protected speech or expression? (Or, in other words, is the suppression itself "content-neutral"?)
2. Is the regulation narrowly tailored to serve the government's interest, and not substantially broader than necessary?
If the regulations are narrowly tailored towards alleviating unwanted, secondary effects of having a striptease joint in town, then it's likely that the law may be valid. If the regulations are super-broad and obviously created solely to kick all the strippers outta town for no reason other than "morals," then we've got an invalid regulation on our hands. Every law should have a clear statement on its purpose -- we can look to this language to gauge legislative or executive intent.
The phrase "unwanted, secondary effects" can mean different things in different states. Many places have distance requirements forcing dancers to stay a certain number of feet away from the audience. This is mandated under the guise of preventing sexual contact, and to try and prevent performers and audience members from negotiating sexual favors or drugs.
Zoning ordinances regulate the location of establishments that offer nude dancing. In upholding such zoning ordinances, the Supreme Court held in Young v. American Mini Theatres (1976) that erotic dancing deserves a lower level of protection than “highly valued expression” such as political speech. Similarly, in The City of Renton v. Playtime Theatres, Inc. (1986), the Court found a strict zoning ordinance constitutional because they said it didn’t suppress erotic expression, but rather the “negative secondary effects” that came along with such erotic expression (yep, that vague phrase again). Using a Heffron analysis, the Court found that the ordinance, while strict, still served a “significant government interest.” The Court also ruled that any difficulties finding suitable new venues within the ordinance zones did not constitute a violation of the First Amendment.
Indecency or Obscenity Statutes
States can also pass indecency statutes to prohibit nudity in public places, including bars or nightclubs hosting burlesque shows. Sometimes, state courts object to these statutes under the power of “the overbreadth doctrine”, which prohibits the application of laws that are so broad they criminalize protected as well as unprotected activity. In short, the overbreadth doctrine says you can’t ban nude dancing if, under those same regulations, ballet (for example) or any other clearly protected activity would also be banned.
Some states have indecency statutes proclaiming nude dancing as “illegal” only if it “affronts, offenses, or alarms” the viewer. However, this is hard to enforce at an establishment with a willing audience, such as those present in burlesque. In addition, some state courts may side with us and simply claim that nude dancing is constitutionally protected free speech - which was up in the air until 1991 in the Barnes case (see “More Striptease Legal Cases” below).
In one example of a case that beat a local indecency statute, Paris Adult Bookstore II v. City of Dallas (1990) found the Supreme Court addressing a challenge to a city ordinance regulating "sexually oriented businesses" through a complicated scheme involving zoning, licenses, and inspections. Various adult establishments, including several with nude dancing, sued. The Court sided with the nudie bars, and held that the ordinance violated the First Amendment by establishing a licensing scheme without adequate procedural safeguards in place for the business owners and nude dancers.
More Supreme Court Striptease Cases
We've previously discussed O’Brien (1968). Here, the Court held that when speech and non-speech elements are found in the same course of conduct - which is what often happens in striptease - "a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Boooooo, Supreme Court! This provides the basis for state regulations restricting striptease.
However, O’Brien did not deal directly with striptease; before 1972, the Supreme Court tried its best to stay out of state regulation of nude dancing.
This all changed in California v. LaRue (1972), when the Court unfortunately upheld a state ordinance regulating live sexually explicit entertainment. However, for the first time they acknowledged that nude dancing was expressive conduct that deserves some level of constitutional protection. As aforementioned, the Court held that 21st Amendment regulatory powers included the right to regulate nude dancing in establishments that serve alcohol. The regulations in question severely restricted nude dancing in places that sold liquor, and were enacted in response to community complaints of illegal activities around the establishment in question. This infringement on normally-protected nude dancing activity was okay because it didn’t forbid the dancing, but rather nude dancing within establishments that serve alcohol. (It's those dang "secondary effects" again.)
State power to govern nude dancing in liquor-selling establishments has expanded since then. The 9th Circuit of Appeals applied the LaRue ruling to an establishment that had no evidence of illegal activities like those happening in LaRue - the court said the ruling simply applied to any location that sells liquor. However, some awesome state courts have held that nude dancing is protected under their state constitutions, even in places selling alcohol.
Doran v. Salem Inn, Inc. (1975) held that nude barroom dancing might be entitled to protection in certain circumstances only, without really stating what those circumstances exactly are.
New York State Liquor Authority v. Bellanca (1981) adopted the LaRue interpretation of the 21st Amendment, holding that states have absolute power to regulate both top and bottomless dancing.
Schad v. Borough of Mount Ephraim (1981) struck down a zoning ordinance that prohibited a wide range of live entertainment, including nude dancing, under the reasoning that other forms of live entertainment are protected even if they contain nudity.
Lower federal courts disagreed on how to apply LaRue, Doran, and Schad. U.S. Court of Appeals for the 7th and 9th circuits held that non-obscene nude dancing is expressive and protected by the First Amendment, but it was also clear that the Supreme Court did not mention a precise scope in the application of this protection. Within this field of uncertainty and circuit splits, those who opposed nude dancing began to try to regulate it or get it banned entirely.
Following LaRue (1972), Barnes v. Glen Theatre (1991) and City of Erie v. Pap’s A.M (2000) also recognized nude dancing as a form of expression with limited protection under the First Amendment. The Court ruled that state public indecency statutes requiring dancers to wear pasties and a G-string did not violate the First Amendment -- but this is fine by most burlesque dancers, since many of us love decorating and wearing pasties. They can't keep us down!
The Barnes case cleared the way for states to regulate nude dancing through indecency statutes, without regard to its nature as expressive conduct under the First Amendment. Fortunately, states could limit the impact of Barnes by interpreting their own state constitutions as providing more broad protections and freedoms than those given by the Constitution. So, for instance, a state with a similar indecency statute as the one in Barnes could declare that all nude dancing is protected speech, under their own constitution.
The Barnes Court stated: "the requirement that the dancers don pasties and a G-string does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic.” There are some who argue that regulations forcing dancers to wear G-strings or pasties are indeed content-directed and not content-neutral, meaning that that the cases are thus wrongly decided under the rubric of O'Brien and Heffron. In addition, in admitting that pasties and a G-string make the message “slightly less graphic,” the Court is admitting that they are somewhat suppressing erotic expression. This, to me, seems like an improper purpose as stated in O’Brien.
In the future, I may go jurisdiction-by-jurisdiction and analyze a sampling of state and local ordinances affecting burlesque. This is a big project, and would take a while, but it definitely sounds fun to me! I'll keep y'all updated on how that goes. Stay tuned next week for Part III, when we’ll discuss FOSTA-SESTA and other legislation governing what stripteasers can post online - including social media, online forums, and our own personal websites.
Until next time,
Bebe Bardot
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