Nude-dancing case threatens free speech
Commentary
By Kenneth A. Paulson
Senior vice president, The Freedom Forum
Executive director, First Amendment Center
04.26.00
Question: What do eight-track tapes, radio dramas and nude dancing have in common?
Answer: All were popular forms of American entertainment in the past century and have virtually no future in this one. Time and technology dispatched 8-tracks and the golden age of radio; the U.S. Supreme Court just retired the dancers.
In a surprising decision in City of Erie v. Pap's A.M., the Supreme Court has paved the way for cities throughout the country to outlaw nude dancing.
There hasn't been much of an uproar in response. Most Americans probably view neon signs blinking "Live Nude Girls" as an eyesore. And no one is prepared to march on city hall to take a stand for public nudity.
Making the case for nude dancing as a protected form of expression has always been an uphill battle. In drafting the First Amendment, James Madison probably didn't envision a day it would apply to naked bodies in bars. Why, then should there be any concern about this Supreme Court decision?
The court's decision is troubling because it took a shortcut that threatens freedom of speech well beyond the confines of a topless bar. The majority opinion, written by Justice Sandra Day O'Connor, grudgingly recognized that nude dancing is a form of expression that falls within "the outer ambit" of First Amendment protection.
Despite that protection, the court ruled, protected speech can be limited if a municipality seeks to regulate the "secondary effects" of the speech and not the speech itself.
This doctrine historically has been used by cities to zone adult entertainment away from schools, churches and playgrounds. The city is still permitting the speech but moving it away from areas where there would be undesirable side effects, including crime, loitering or disruptive behavior.
In Erie v. Pap's, the Supreme Court has taken the extraordinary effect of using the secondary-effects doctrine to mute speech, not just move it.
The court acknowledged that erotic dancing is protected by the free-speech guarantee, but it said the expression is pretty much the same if a woman is required to wear a G-string and pasties. In other words, constitutionally protected expression can be limited or suppressed if a community can demonstrate that the speech contributes to undesirable conduct unrelated to the speech itself.
In the words of dissenting Justice John Paul Stevens, "Far more important than the question whether nude dancing is entitled to the protection of the First Amendment are the dramatic changes in legal doctrine that the Court endorses. ... For the first time, the Court has now held that (secondary) effects may justify the total suppression of protected speech."
The court's decision will encourage cities to ban nude-dancing establishments. In the next few months, we'll see a wave of new legislation designed to ban "public nudity."
That legislation will be the "secondary effect" — to use the Supreme Court's term — of this decision. The primary effect is on the First Amendment itself — and we may not know the true cost for years.
Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is:
Ken Paulson
First Amendment Center
1207 18th Ave. S
Nashville, TN 37212