Nudity & Free Speech

Are laws that regulate nudity, especially those that are enforced only against certain types of venues (read: strip clubs) constitutional? The U.S. Supreme Court upheld an Erie, Pennsylvania, law that required dancers to wear something and rejected the claim that nude dancing should be protected by the First Amendment as a type of "expressive conduct." But there is a new case in Utah...

According to KSL News

Neither court has ruled on the law's constitutionality, but the 10th Circuit did say that exotic dancing is "at least a distant cousin" to performance art, which has been afforded full constitutional protection by the courts.

It all comes down to how the dancing is viewed and interpreted, right? That seems to have been tacitly admitted...

Tennessee lawyer Scott Bergthold, who drafts and defends municipal adult-business regulations around the country, represented South Salt Lake for Wednesday's arguments and said the ordinance is in tune with laws that have regulated similar activities in Utah since its days as a territory. Chief Justice Christine M. Durham asked Bergthold whether the ordinance unfairly allows nudity in uptown venues and theaters, but punishes the same conduct when it occurs in sexually oriented businesses.

Bergthold replied that the ordinance rightly targets the clubs and the illegal activities associated with them. "'The Dance of the Seven Veils' at the Utah Opera doesn't affect property values," he said.

Why doesn't certain type of entertainment reduce property values? Part of it is perception (some is treated as sinful, some isn't) and part of it has to do with class (wealthy people are more likely to go to the opera to see nudity where it is "acceptable," working-class people are more likely to go to a strip club to see nudity).

But if strip club nudity is unacceptable because of how it is interpreted by some portions of the public, doesn't that basically make it a form of expressive conduct? The dancers are expressing something which will be interpreted in different ways by different people - some will find it agreeable, others won't. The government, however, seems to see fit to step in on the side of those who see this sort of nudity disagreeable by banning it while privileging the types of nudity favored by certain segments of the community.

Read More:

• Recent Books on Free Speech
• Court Decisions on Free Speech and Censorship