By David L. Hudson, Jr. The First Amendment protects much more than the spoken or printed word. It also protects various forms of symbolic speech and expressive conduct. The Supreme Court has ruled that the display of a red flag, the wearing of a black armband, the burning of the American flag and yes, even nude performance dancing are forms of expression that when restricted, require First Amendment review.
The idea that nude performance dancing is a form of free expression may surprise some, but such dancing certainly conveys messages of eroticism. Judge Richard Posner once wrote in a decision, Miller v. City of South Bend 7th Cir. The goal of the stripteaseβa goal to which the dancing is indispensableβis to enforce the association: to make plain that the performer is not removing her clothes because she is about to take a bath or change into another set of clothes or undergo a medical examination; to insinuate that she is removing them because she is preparing for, thinking about, and desiring sex.
The dance ends when the preparations are complete. 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 law features a double standard when it comes to nude performance dancing. Nude performance dancing in a play or theater is often respected and unregulated. The Supreme Court first addressed nude dancing in California v. LaRue In response to complaints about nude dancing at bars, the California Department of Alcohol Beverage Control issued rules regulating the type of live entertainment that could occur in businesses serving alcohol.
When local bar owners challenged the constitutionality of the regulations, the state argued the rules were necessary to prevent sex crimes, prostitution, and drug abuse. The Supreme Court ruled 6β3 in favor of the regulations. Writing for the majority, Justice William Rehnquist noted that states had broad power to regulate the distribution of alcohol. The Supreme Court next addressed nude dancing in Doran v. Salem Inn , hinting that at least some such performances merit First Amendment protection.
