protected under the first amendment?
Forgive me for my ignorance on the topic, but if I don't ask I won't learn.
The other night at work a girl was telling me that the only reason strip clubs can stay open is because we are protected under the first amendment. I don't exactly understand how. Is there anywhere I can look to better understand, or are there any ladies that have some thoughts and information on it.
The Mayor here also stated recently that, short of shutting us down, he would like to put as many restrictions on the adult industry here as possible, without violating our first amendment right. I want to become more knowledgable in the industry I have chosen to work. I have no idea where to start. Any help?
Re: protected under the first amendment?
This is what I found
http://news.minnesota.publicradio.or...-m/dance.shtml
Okay, I'm not following you around the board... promise :)
Re: protected under the first amendment?
Dancing is an art form, a medium of artistic expression. The First Amendment ensures freedom of expression. There have been quite a few court cases where strip clubs have fought to stay open on the grounds that the dancers provide protected artistic entertainment.
Re: protected under the first amendment?
That was a very imformative article. Thank you Cyndi08
and thank you Yekhefah
I truly appreciate the response and feedback. I am pretty new to the forum and sometimes find it hard to get feedback, but when I do get feedback it is always quality and very informative.
As a side note I was also wondering if perhaps the Patiot Act has somehow changed that protection under the first amendment? Have any cases been argued since the patraiot act passed? Am I even in the right ballpark here?
Re: protected under the first amendment?
I have heard that when the patriot act was first passed the first think they used the law in was convicting some club owners and politicians in Las Vegas rather than using it on terrorism, which the law was originally drawn up for. I am not sure though. I also heard that it somehow relates to the problems that stripclubs in Ohio are facing. I prefer not to go off of heresay, but it is difficult for me to navigate through all of this information. It is a bit overwhelming. I want to learn how to protect my rights as a dancer though.
Re: protected under the first amendment?
In Oregon it's absolutely a First Amendment right -- in the 80s the Oregon state Supreme Court said nude dancing was protected free speech! Other places interpret it differently, to be sure, though. I seriously doubt Texas has anything approaching as liberal an interpretation of the Constitution on their books.
Just performing naked is easy to argue for -- it's when interpersonal contact gets into the mix that we're no longer talking about "speech" (read performance) but rather into transactions between consenting adults.
Re: protected under the first amendment?
One municipality (I forget which one, but I think it's in Ohio) had a ruling that simple nude dancing is not protected art, but nude modeling for art classes would be. So the strip club hands out paper and pencils to everyone who comes in, and the guys are offically there for "art modeling" and encouraged to draw the dancers in action. Some of the drawings are quite good and the club frames them to put on the wall, LOL!
Re: protected under the first amendment?
^^They tried that in Idaho and it didn't pass muster. Now all the girls must wear "beach-legal" bikinis. It doesn't seem to bother the Idaho patrons, though. The SR in Boise seems to be doing good business.
Re: protected under the first amendment?
today's legal interpretations of first amendment protections for exotic dancing primarily stem from a 2000 US Supreme Court decision Erie (Pennsylvania) vs PAPS (clubowner). This US supreme court decision overrides all previous state and federal laws and/or court rulings.
Justice Sandra Day O'Connor wrote for the majority of the court in Erie vs PAPS ...
(snip)"Justice O'Connor concluded that the ordinance did not violate the First Amendment. She reasoned as follows.
1. Nude dancing is expressive conduct although it falls in the outer limits of First Amendment protection.
2. The ordinance regulates conduct and is not aimed at suppressing nude dancing's erotic message. The ordinance's preamble suggests its purpose is to prohibit erotic dancing but it is aimed at combating crime and other negative secondary effects caused by adult entertainment establishments. The secondary effects address public health, safety, and welfare. The interest in combating secondary effects is unrelated to the suppression of the erotic message.
3. The ordinance does limit one way to express an erotic message. In some cases, banning one way of expression does essentially ban the message but that is not the case here. The dancers can perform wearing pasties and G-strings and any effect on the overall expression is minimal.
4. The ordinance does not regulate expression on the basis of its content.(snip)
[Justice Scalia wrote a concurring opinion - sic]
(snip)Justice Scalia then addressed the ordinance's validity and agreed with the Court's conclusion but disagreed with the plurality's analysis. He argued as follows.
1. When conduct other than speech is regulated, the First Amendment is violated only when the government prohibits conduct precisely because of its communicative attributes.
2. The ordinance prohibits all public nudity. Even if Erie singled out nude dancing with the ordinance, it did not violate the First Amendment unless it was the communicative character of nude dancing that prompted the ban.
3. It is not necessary to base the ordinance on secondary effects. The First Amendment did not repeal the traditional power of government to foster good morals or the accepted judgment that nude public dancing is immoral.
Justice O'Connor stated that the ordinance is valid if it satisfies the test for evaluating restrictions on symbolic speech: (1) the regulation must be within the constitutional power of the government, (2) the regulation must further an important or substantial government interest, (3) the government interest must be unrelated to the suppression of expression, and (4) the restriction must be no greater than necessary to further the government interest. She stated that the ordinance met these four requirements and reasoned as follows.
1. Protecting public health and safety are within the city's police powers.
2. Regulating conduct and combating harmful secondary effects are important government interests. The city can use evidence of secondary effects compiled by other cities and does not need to conduct new studies if the evidence is relevant to the problem. Erie also made its own findings and the city's expert judgment about its own community should not be doubted unless it is challenged. The ban may not greatly reduce the secondary effects but the city must have a reasonable opportunity to experiment with solutions for serious problems.
3. The state's interest in preventing harmful secondary effects is not related to the suppression of expression.
4. The ordinance regulates conduct and any incidental impact on expression is minimal. Requiring dancers to wear pasties and g-strings is a minimal restriction that furthers the government's interest and allows the dancers to convey their erotic message.(snip)
[then Justice Stevens and Ginzberg wrote this dissenting opinion, which was of course overruled by the other judges - sic]
(snip)"JUSTICE STEVENS' DISSENT
Justice Stevens, joined by Justice Ginsburg, argued that the Court inappropriately used the secondary effects of a commercial enterprise to justify suppression of protected speech. He stated that in prior cases secondary effects justified only regulating the location of businesses with indecent entertainment. He added that the plurality concluded that trivial advancements of the state's interest could be the basis for censorship.
Justice Stevens reasoned as follows.
1. The ordinance states that its purpose is to limit live nude dancing in Erie. The erotic message of the dancers is a form of expression protected by the First Amendment. It receives protection even if it lies on the outer limits of the First Amendment.
2. If dancers with miniscule costumes convey the same erotic message as nude dancers, then the ordinance bans one means of expressing that message. If the message is different, then the ordinance bans one of the messages.
3. The Court's prior rulings on secondary effects involved regulating the location of adult movie theaters and limited the places where adult films were exhibited. They did not censor any speech. The Court called them "time, place, and manner" regulations and these regulations must leave open other alternative channels for communicating information. Erie's ordinance is a complete ban that fails this test. The Court rejects the explicit reasoning and ruling in these prior cases.
4. There is no reason to believe that the ordinance will reduce any secondary effects and the Court is satisfied by the possibility of minimal effects on the neighborhood.
5. Although the ordinance is not limited in its application, it is clear that it is aimed at nude live entertainment. The ordinance declares this purpose and Erie's council members expressed this view.
6. Nudity is protected speech and it is the target of the ordinance. The ordinance should be clearly invalid."(snip)
(snip) from
... thus the outcome of this Supreme Court case, on conjunction with other cases, has resulted in the following legal interpretations in terms of first amendment protections of erotic dancing -
#1 - erotic dancing itself IS a protected form of expression under the first amendment, which states and cities cannot totally ban. However, states and cities can regulate erotic dancing i.e. zoning regulations, closing time regulations etc. (collectively referred to as 'time, place and manner' regulations)
#2 - erotic dancing's protected elements of expression do NOT extend to the dancer being nude or semi-nude while performing the erotic dance. Erotic dancing's protected elements of expression also do NOT extend to the dancer being in direct physical contact with her 'audience'.
#3 - states and cities have total legal authority to ban public nudity, thus they can legally ban nudity or semi-nudity in strip clubs as long as they also ban nudity in other public places i.e. beaches, parks etc. States and cities also have legal authority to regulate 'conduct' i.e. direct physical contact between dancers and 'audience' members.
#4 - since the dance itself is the 'message' protected by the first amendment, nudity is not the 'message' being conveyed by erotic dancing, thus nudity or semi-nudity during erotic dances is NOT protected under the first amendment. Therefore states and cities are not abridging the first amendment rights of exotic dancers by prohibiting nudity or semi-nudity as long as they are still allowed to perform their erotic dances while minimally clothed. Similarly, direct physical contact with the 'audience' is not the 'message' being conveyed by erotic dancing either, thus direct physical contact with the 'audience' is also NOT protected under the first amendment.
It was later clarified that states and cities do NOT have the legal authority to ban nudity where that nudity occurs as part of an artistic 'performance' where the entire performance is protected under the first amendment. This has been interpreted to mean mainstream entertainment industry products i.e. movies and videos, as well as 'legitimate' theater, ARE entitled to first amendment protections of nude content. Attempts to argue that this artistic 'performance' protection should also extend to live performances of nude or semi-nude erotic dancing outside of 'legitimate' theater have typically failed in the lower courts - and have not yet reached the US supreme court for an authoritative 'final' decision on the subject.
It has yet to be clarified by the US supreme court as to what limits, if any, should apply to the right of states and cities to regulate the 'conduct' of erotic dancers. The area of 'conduct' encompasses direct physical contact with customers, 'buffer zones' i.e. minimum distances between dancers and customers, etc. Where regulation of 'conduct' is concerned, these matters have never gotten farther than the lower courts - with the lower court decisions varying widely.
However, one concrete exception has been the unassailable rights of states to regulate the environment in which alcohol is served under license. Thus if a club serves alcohol to customers along with providing a venue for erotic dancing, the state's alcohol regulating authority can legally set any regulations it chooses to limit the erotic dancing which can be performed while alcohol is being served (including a total ban).
Another formerly concrete exception ( I say formerly because the results of last year's supreme court decision on Lawrence v Texas have yet to be fully tested ) is that states and cities have the unequivocal right to regulate the providing of sexual contact in exchange for money under the heading of their right to regulate intrastate commerce. This aspect is of course muddied up by the range of interpretation of lower courts as to what particular forms of contact between dancer and customer constitute sexual contact. Different lower courts have come to different decisions re whether or not a contact lap dance constitutes sexual contact, thus granting states and cities the right to regulate (or totally ban) contact lap dances under the heading of intrastate commerce. Like the issues of 'conduct', the issues of 'sexual contact' also have yet to reach the US supreme court for a 'final' decision.
Quote:
I have heard that when the patriot act was first passed the first think they used the law in was convicting some club owners and politicians in Las Vegas rather than using it on terrorism, which the law was originally drawn up for.
The new powers granted to law enforcement under the patriot act have absolutely nothing to do with first amendment issues or, for that matter, erotic dancing. Instead they have to do with money laundering i.e. stronger investigative tools for the discovery of 'undocumented income' i.e. undeclared / unreported cash which could potentially be used to fund terrorist activities.
The 'undocumented income' investigations have indeed led to some tax evasion / tax fraud charges being brought against some clubowners - with particular clubs in Vegas and Manhattan garnering a fair amount of publicity in this regard. In a few cases the 'undocumented income' investigations have not only followed the money into the hands of the clubowners, but have continued to follow the money from the clubowners to local politicians too !!!
It is my personal fear that these 'undocumented income' investigations of club books will eventually trickle down to 'undocumented income' investigations of dancers working for clubs already known to be under investigation once the 'big fish' i.e. clubowners, politicians, club investors etc. have been thoroughly investigated first. After all, the 'undocumented income' investigations of club books have undoubtedly turned up job applications listing dancers' real names and SS numbers, club work schedules showing which dancers worked on which days / nights etc.
~
Re: protected under the first amendment?
To Yekhefah,
I think my boyfriend would be in a strip club everyday if he could draw the ladies :)
He currently avoids them like the plague.
To Melonie,
Some of that information put my mind a bit at ease as far as what the mayor is trying to accomplish here, thank you.
This is exactly the kind of information I need. I have felt an increasing, almost frantic need to educate myself in this area of information for sake of my own well being. This has given me a running start.
Some of this has also made me a bit uneasy, and I will have to investigate more.
Re: protected under the first amendment?
Quote:
Some of this has also made me a bit uneasy, and I will have to investigate more.
Seeing as how you are living and dancing in Texas, you have good reason to be uneasy. Texas courts have led the nation in terms of 'unfavorable' lower court rulings. For example a Texas court ruled that the following scenario had all of the necessary elements to warrant a prostitution conviction. Two girls are dancing together on stage ... one dancer touches the other dancer's breast ... a customer is tipping at the stage rail. In other words, under Texas law there is no legal requirement that the person paying the money be the same person receiving the sexual contact !!!