Nude Dancing
Entertainment in its many forms,
such as motion pictures, plays and dance performances, is
expression protected by the First Amendment. Yet the Supreme
Court has ventured down the muddled path of declaring some
kinds of entertainment less protected than others. This is
true with nude or topless dancing.
When nude dancing is performed to
entertain and communicate with others, it is protected expression.
But the Supreme Court said in a 1991 case involving nightclub
entertainment: "[N]ude dancing of the kind sought to be performed
here is expressive conduct within the outer perimeter of the
First Amendment, though we view it as only marginally so."
This kind of waffly language from
the courts has helped fuel many years of expensive legal battles
at the local level, where cities are inclined to pass ordinances
that restrict or altogether discourage adult nightclubs. In
some parts of the United States the battle has been particularly
intense in recent years. Residents often fear the effects
of adult establishments in their neighborhoods, and local
officials generally perceive greater political benefit in
"cracking down" on such businesses than in supporting them.
On the other hand, exotic dance clubs have grown to a $2 billion
industry in America, with more and more "upscale" clubs and
the wherewithal to fight what they see as suppressive, prudish
laws.
In general,
the legal battle goes like this:
A municipality, or sometimes a state, passes a law that targets
adult nightclubs for special restrictions. Typically these
restrictions pertain to where exotic dance clubs may be located
or how they may advertise. They may also contain very specific
operating stipulations, such as no-touching rules, distance-from-customer
rules, no-tipping rules, special liquor-sales rules, and limits
on hours of operation.
Because these laws single out certain
establishments based on the content of their expression —
adult entertainment — the laws normally would be unconstitutional.
But in the 1980s the Supreme Court created the "secondary-effects
doctrine" that makes such laws easier to uphold. Under
this doctrine, the adult nightclub restrictions go through
something akin to a time/place/manner analysis. As long as
the government controls are reasonably designed to combat
substantial, negative "secondary effects" of such
establishments — and not aimed at stamping out the adult
expression itself — then the controls will be upheld.
Typically the negative secondary effects cited by government
are increased crime in the vicinity or public-safety concerns
inside or outside the nightclubs.
The doctrine has led to considerable
litigation around the country, which shows no sign of subsiding.
How much "secondary effects" evidence must the government
have? Who has the burden of proof on the existence or non-existence
of negative effects? The Supreme Court provided a little more
guidance in the 2002 case of City of Los Angeles v. Alameda
Books. Writing for the majority in the badly fractured, 5-4
ruling, Justice O'Connor said that government may rely upon
any evidence reasonably believed relevant for showing a connection
between adult entertainment and increased local crime. But
she added: "This is not to say that a municipality can get
away with shoddy data or reasoning." If the adult establishments
succeed in casting doubt on the government's evidence or regulatory
rationale, then the burden shifts back to government to produce
supplemental evidence that truly justifies its restrictions.
What this means is that communities
have significant latitude to use zoning laws or other ordinances
to regulate adult entertainment establishments. But the laws
must target real problems identified by reasonable evidence
— not purely speculative problems based on raw assumptions.
Also, restrictive ordinances are unconstitutional if their
real intent or effect is to force protected adult entertainment
entirely out of existence.
Trial courts in recent years have
been reaching different conclusions. Some restrictions on
exotic dance clubs have been upheld as reasonably serving
significant public interests. But others have been cut down.
For example, in a 2006 case Lollipop's Gentlemen's Club in
Daytona Beach sued the city over an ordinance that prohibited
nudity in clubs that serve alcohol. The city's stated rationale
for the law was that nude dancing contributed to crime. But
Lollipop's commissioned an expert study that found no evidence
of increased crime, especially sex crimes, stemming from erotic
entertainment. The city failed to refute with any credible
evidence of its own. Therefore, the federal District Court
declared the ordinance unconstitutional, saying "Gone are
the days when a municipality may enact an ordinance ostensibly
regulating secondary effects on the basis of evidence consisting
of little more than the self-serving assertions of municipal
officials."
