« Done! (And a week of rest) | Main | Still vacationing... »

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.


TrackBack URL for this entry:

Listed below are links to weblogs that reference Nude Dancing, Venom and Vitriol:

» Helena Handbasket Now Appearing... from Mediocrity's Co-Pilot
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]


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.

Post a comment

NOTICE TO SPAMMERS, COMMENT ROBOTS, TRACKBACK SPAMMERS AND OTHER NON-HUMAN VISITORS: No comment or trackback left via a robot is ever welcome at Three Years of Hell. Your interference imposes significant costs upon me and my legitimate users. The owner, user or affiliate who advertises using non-human visitors and leaves a comment or trackback on this site therefore agrees to the following: (a) they will pay fifty cents (US$0.50) to Anthony Rickey (hereinafter, the "Host") for every spam trackback or comment processed through any blogs hosted on threeyearsofhell.com, morgrave.com or housevirgo.com, irrespective of whether that comment or trackback is actually posted on the publicly-accessible site, such fees to cover Host's costs of hosting and bandwidth, time in tending to your comment or trackback and costs of enforcement; (b) if such comment or trackback is published on the publicly-accessible site, an additional fee of one dollar (US$1.00) per day per URL included in the comment or trackback for every day the comment or trackback remains publicly available, such fee to represent the value of publicity and search-engine placement advantages.

Giving The Devil His Due

Choose Stylesheet

What I'm Reading

D.C. Noir

My city. But darker.
A Clockwork Orange

About time I read this...


Projects I've Been Involved With

A Round-the-World Travel Blog: Devil May Care (A new round-the-world travel blog, co-written with my wife)
Parents for Inclusive Education (From my Clinic)

Syndicated from other sites

The Columbia Continuum
Other Blogs by CLS students

De Novo
Theory and Practice
Liberal Federalism?
Good News, No Foolin'

Nancy Pelosi covers her head and visits the head of John the Baptist.
Vlogging in from Austin.
Omikase/"American Idol"

Jeremy Blachman's Weblog: 2007
Happy Passover
Looking for Advice re: LA
Google Books

Stay of Execution
What I've Learned From This Blog, or My Yellow Underpants
The End
Mid Thirties

Legal Theory Blog
Program Announcement: Summer Programs on the Constitution at George Washington
Book Announement: Political Foundations of Judicial Supremacy by Whittington
Entry Level Hiring Report

The Volokh Conspiracy
Making the Daily Show:
Civil unions pass New Hampshire House:
Profile of Yale Law Dean Harold Koh:

Crescat Sententia
Hillary II
Politics and Principal/Agents

Law Dork
Election Approaches
Following Lewis
New Jersey High Court: 'Same Rights and Benefits'

Surveying the revival
Birds of paradise

Half the Sins of Mankind
Cheney Has Spoken Religious conservatives who may ...
Does Ahmadinejad Know Christianity Better Than MSN...
Borders as Genocide In discussions of climate chan...

For lovers of garden gnomes...and any China-freaks out there
We Interrupt Your Regularly Scheduled Programming

Does SOX explain the flight from NY?
More Litvak on SOX effect on cross-listed firms
What did the market learn from internal controls reporting?

The Yin Blog
Iowa City = Riyadh
Jeffrey Rosen's "The Supreme Court"
Geek alert -- who would win between Battlestar Galactica and the U.S.S. Enterprise?

Letters of Marque
And there we are

Signing Off

Dark Bilious Vapors
Jim (The Waco Kid): Where you headed, cowboy?
Bart: Nowhere special.
Jim: Nowhere special. I always wanted to go there.
Bart: Come on.
--"Blazing Saddles"

Technical Difficulties... please stand by....
The Onion should have gotten a patent first....

Legal Ethics Forum
Interesting new Expert DQ case
Decency, Due Care, and The Yoo-Delahunty Memorandum
Thinking About the Fired U.S. Attorneys

Ex Post
Student Symposium- Chicago!
More Hmong - Now at Law School
Good Samaritan Laws: Good For America?

Appellate Law & Practice
Those turned over documents
CA1: courts can’t help people acquitted of crimes purge the taint of acquitted conduct
CA1: restrictions on chain liquor stores in Rhode Island are STILL okay

the imbroglio
High schoolers turn in plagiarism screeners for copyright infringement
Paris to offer 20,600 bikes at 1,450 stations to rent by the end of the year

The Republic of T.
The Secret of the Snack Attack
links for 2007-04-04
Where You Link is What You Get

Distractions for stressed law students

The Other Side: Twisted AnimationsSomething Positive, a truly good webcomic

Syndicate This Site



Stop Spam Harvesters, Join Project Honey Pot