Tuesday, April 17, 2007
Nude Dancing and Secondary Effects
Can a municipality ban nude dancing in adult establishments? The Supreme Court has ruled that erotic dancing is a form of expressive conduct (like flag burning or draft card burning) and as such is entitled to a measure of the constitutional protections offered to speech. In practice, what this means is that a municipality can not just ban nude dancing, unless it provides a fig leaf of a rationale by claiming that what it really wants to do is to combat the nasty secondary effects associated with nude dancing, such as prostitution and public nuisance. And the fig leaf of a rationale doesn't materialize just because it is asserted that a requirement of G-strings is necessary to combat those secondary effects; rather, some sort of reference to actual evidence is required, too. Hartford, Vermont, couldn't be bothered with looking at any evidence before it passed a ban on nude dancing -- after the fact its planning department did manage to review the experiences elsewhere. But this lackadaisical approach was found by a Federal court to render the ordinance unconstitutional, and the 2nd Circuit Court of Appeals recently upheld the lower court's opinion.
Now does anyone really believe that nude dancing creates negative secondary effects but that allowing only nearly-nude dancing is a reasonable way of controlling these effects? Well, no. This obvious logical deficiency in the law provided a starting point for a provocative analysis by Amy Adler; here's a short excerpt from her abstract:
I show that the legal struggles over the meanings and the dangers of the gyrating, naked female body can be fully understood only when placed within a broader context: the highly charged terrain of female sexuality. By rereading the cases as texts regulating gender and sexuality and not just speech, a dramatically new understanding of them emerges: The nude dancing cases are built on a foundation of sexual panic, driven by dread of the female body.Vice Squad had a nude dancing frenzy a few years ago; here's the May 28, 2004 post. (This link seems to work, but other links to previous posts basically have been failures since an 'upgrade' to Blogger's software -- the links generally take you only to the month of the relevant post. I will try to remember to include the actual date of linked previous posts for those with too much time on their hands. And in Blogger's defense, I must say that I like the new "label" feature, so that you can easily reach all of Vice Squad's dancing-related posts. One problem with this feature, however, is that our blog had about 1200 unlabeled, pre-existing posts, and the process of going back and attaching labels has been haphazard. But we will soldier on.)