Monday, September 20, 2004
Nude Dancing and Lawrence
Friend of Vice Squad Will Baude at Crescat Sententia notes a potential conflict between the Supreme Court decisions in Barnes v. Glen Theatre and Lawrence v. Texas. Will asks, "does the government's ability to regulate purely consensual adult nudity in private places survive Lawrence?" Well, the moral rationale to control nude dancing, as Will notes, will have a tough time being sufficient, post-Lawrence, to justify controls. But I imagine that controls on the nude Hoosierdome gathering, or on strip clubs, can (and sometimes will) still be upheld, based on the "secondary effects" analysis that Justice Souter pointed to in Barnes and that Justice O'Connor employed in upholding restrictions on nude dancing in the (year) 2000 case of Erie v. Pap's A.M. That is, Justice O'Connor based her analysis on negative externalities, such as crime and "other secondary effects", that could follow from unregulated nude dancing. Does requiring that a dancer not be entirely nude actually reduce these negative externalities? Justice Scalia didn't think so, in a parenthetical comment in his opinion concurring with the judgment in Erie: "(I am highly skeptical, to tell the truth, that the addition of pasties and g-strings will at all reduce the tendency of establishments such as Kandyland to attract crime and prostitution, and hence to foster sexually transmitted disease.)"
Here's a previous Vice Squad post on the Erie case.