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Nude Dancing, Venom and Vitriol

Amanda Butler and Will Baude have been going back and forth a bit about what constitutes 'expression,' and specifically whether nude dancing should be seen as such. I'm not going to add much to the debate. From a non-legal perspective, I side with Amanda: just on a gut-level, the idea that 'freedom of speech' entails bringing one's milkshake to the yard is a stretch of titanic proportions. On the other hand, I also think substantive due process is pretty much a joke: a legal rule that all lawyers should know--it's the law, after all--but intellectually indefensible to all but the most committed realist. Being on the opposite side of most commentators, you may thus feel free to disregard my constitutional mutterings.

But whatever you think of Supreme Court jurisprudence--and there's nothing like a good Con Law course to make you think less of it--you should read the nude dancing cases. They contain some of the most meretricious logic, the most vitriolic dissents, and the most entertaining rhetoric. In particular, you should read City of Erie v. Pap's AM, 529 U.S. 277. It's here that O'Connor once again makes constitutional law out of whole cloth, announcing her expansion of a "secondary effects" test to justify a state requirement that nude dancers wear pasties. (Briefly, that the state can restrict speech rights if the ordinance would tend to reduce the 'secondary effects' of that speech, in this case prostitution, crime, STDs, what have you.) In the closest thing to common sense you'll read in any nude dancing case--in which the phrase 'erotic expression' places stripping on a level no customer of Pap's would ever give it--Stevens has a brilliant dissent (at 299-300):

The Court's mishandling of our secondary effects cases is not limited to its approval of a total ban. It compounds that error by dramatically reducing the degree to which the State's interest must be furthered by the restriction imposed on speech, and by ignoring the critical difference between secondary effects caused by speech and the incidental effects on speech that may be caused by a regulation of conduct.

In what can most delicately be characterized as an enormous understatement, the plurality concedes that "requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects." Ante, at 20. To believe that the mandatory addition of pasties and a G-string will have any kind of noticeable impact on secondary effects requires nothing short of a titanic surrender to the implausible.


How true. Reading the main opinion, it does rather seem like O'Connor believes pasties and pimps have roughly the same relationship as garlic and vampires. It's quotes like that which let you get through Con Law.

Anyway, I'm off to Grand Rapids for some pre-Tokyo shopping--I promise I'll give you more worthwhile updates when I return.

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it seems our disagreement comes down to a single, irreconcilable point -- I believe that the performative aspect of art (natch, I meant dance) enables it to fit comfortably under the protection of the First Amendment, she doesn't. [Read More]

Comments

Of course nude dancing is the worst face of the issue. But where do you stand on Butler's (implied &, I guess, stated) position that visual art isn't protected?
O'Connor once again makes constitutional law out of whole cloth, announcing her expansion of a "secondary effects" test to justify a state requirement that nude dancers wear pasties I'm amazed at this ridiculous requirement. Though I suppose it will create plenty of jobs for Cornish people. On a more serious note (and bearing in mind that I have no idea what 'pasties' means in this context), surely if you're wearing something as anything other than an accessory, by definition you are no longer a nude dancer?
For the benefit of my U.S. readers: Cardinal Sin is one of my U.K. friends. Before anyone gets up in arms, a "Cornish Pasty" is a kind of lunch. For the benefit of Cardinal Sin: "pasties" in this context means a sticker put over the nipple. Given that in constitutional law you can have substantive due process (almost a contradiction in terms) or nude dancing as "speech," I think "clothed nude dancing" is well within traditional standards of Supreme Court lexical conduct. But in seriousness and to be clear, the law in City of Erie tended to ban "nude" dancing, but allowed dancing with pasties and g-strings.
why are you such a prude?
I'm not. I have no problem with nude dancing. However, I think it's silly to think that it's 'expression' such as to rise to the level of a Constitutional question.
Hola.

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