Nude dancing establishments are typically associated with prostitution, public sexual contact between dancers and patrons, drugs and other criminal conduct, including higher incidences of sexual assault. (8.1)
The Supreme Court has ruled that it is at the outer parameters of the First Amendment and that whatever speech component it contains can be overridden by a community's concern for the negative consequences of establishments offering nude dancing. Thus, public nudity can be prohibited in establishments open to the public.(8.2)
Virtually every state has some sort of regulation of nude dancing in bars. Regulations on nude dancing must be aimed at secondary effects and undergo the same kinds of analyses as other SOBs. The presence or absence of alcohol in an SOB does not alter the constitutional legal analysis, but its presence may increase the likelihood of adverse secondary effects. (8.4)
This chapter will discuss the significant harms that they can bring into a community and then review the means to regulate nude dancing and prohibit public nudity.
The primary justification for prohibiting public nudity is
that it creates numerous "harmful effects" in communities. Justice
Rehnquist described those effects over 30 years ago in California v. LaRue, 409 U.S. 109 (1972). Drawing from the
District Court's transcript, Justice Rehnquist explained that
"prostitution occurred in and around such licensed premises, and involved
some of the female dancers. Indecent exposure to young girls, attempted rape,
rape itself, and assaults on police officers took place on or immediately
adjacent to such premises."
Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and customers placed rolled currency either directly into the vagina of a female entertainer, or on the bar in order that she might pick it up herself. Numerous other forms of contact between the mouths of male customers and the vaginal areas of female performers were reported to have occurred.
In every case where nude dancing prohibitions have been upheld, a critical element is that the law or ordinance is not targeted at the dancing, but at the negative secondary effects associated with the conduct occurring in the establishment.
In City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41 (1986), the Renton ordinance was aimed "not at the content of the
films shown at the 'adult motion pictures theatres', but rather at the
secondary effects of such theatres on the surrounding community." 475
More recently, in Barnes
v. Glen Theatre, Inc., 501 U.S. 560 (1991), harmful secondary effects played a key
role in the Supreme Court's decision to uphold a public nudity statute that
prevented public nude dancing. Secondary effects formed the foundation for
Justice Souter's concurring opinion, which provided the fifth vote for
upholding the statute. Justice Souter argued that
Harmful secondary effects also played a role in City of Erie v. Pap’s A.M., 120 S.Ct. 1382 (2000) where the
Supreme Court upheld Erie’s ordinance prohibiting public nudity on grounds that
it focused on fighting secondary effects. Writing for the plurality, Justice
O’Conner referred to the preamble of the ordinance, which stated, “[C]ertain
lewd, immoral activities carried on in public places for profit are highly
detrimental to the public health, safety and welfare, and lead to the
debasement of both women and men, promote violence, public intoxication,
prostitution and other serious criminal activity.”
In upholding prohibitions against public nudity, including nude "barroom dancing", courts have consistently found a valid exercise of the state's police power, based on various legitimate governmental interests:
(1) concern for public morals:, See, e.g.,
T Backs Club, Inc. v. Seaton, 84 F.Supp.2d 1317 (M.D. Ala. 2000); Recreational Developments of Phoenix, Inc. v.
City of Phoenix, 83 F.Supp.2d 1072 (D.Ariz. 1999); State v. Ciancanelli,
45 P.3d 451 (Or. 2002); Aguirre v. State, 22 S.W.3rd 463 (Tex. Crim.
App. 1999); Ino Ino, Inc. v. City of
Bellevue, 937 P.2d 154 (Wash. 1997); Smith
v. City of Huntsville, 515 So.2d 72 (Ala. Cr. App. 1986); Crownover v. Musick,
509 P.2d 497, 511 (Cal. 1973), rev’d on
other grounds Morris v. Municipal Court,
652 P.2d 51 (Cal. 1982); Eckl
v. Davis, 124 Cal.Rptr. 685
(Cal. App. 1975); Gabriel
v. Town of Old Orchard Beach, 390 A.2d 1065 (
(2) protecting societal norms: See, e.g., State v. Turner, 382 N.W.2d 252, 254-55 (Minn.Ct.App. 1986);
(3) preservation of public decency: See, e.g., Flannigan’s
Enterprises, Inc. of Georgia v. Fulton Co., Ga.,
242 F.3d 976, 984 n. 9 (11th Cir. 2001); 8131 Roosevelt Corp. v.
Zoning Board of Adjustment of City of Philadelphia, 794 A.2d
963, 970 (Pa. Commonw.
(4) promotion of general welfare, discipline,
"peace and good order: See,
e.g., Baby Dolls Topless Saloons,
Inc. v. City of
(5) prevention of
degradation of person exposed: See,
e.g., Gatena v. County of Orange,
80 F.Supp.2d 1331 (M.D. Fla. 1999); Village
of Winslow v. Sheets, 622 N.W. 2d 595 (Neb. 2001); Pap’s A.M. v. City of Erie,
719 A.2d 273 (Pa. 1998) rev’d on other
grounds 529 U.S. 277 (2000) ; Purple
Orchid, Inc. v. Penn. State Polc, Bureau of Liquor Control Enforcement, 721 A.2d 84 (Pa. Commw.
(6) prevention of prostitution and pandering: See, e.g., City of Renton v. Playtime Theatres, 475 U.S. 41 (1986); Baby Dolls Topless Saloons, KEV, Inc. v. Kitsap County, 793 F.2d 1053, 1056, 1059 (9th Cir. 1986); Ways v. City of Lincoln, 2002 WL 1742664 (D. Neb. July 29, 2002); Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. of California, 121 Cal.Rptr.2d 729, 735 (Cal.App. 4 Dist. 2002);
(7) preventing public commercial exploitation of sex and sex crimes: See, e.g., O'Day v. King County, 749 P.2d 142, 145, n.2, 154 (Wash. 1988); Koppinger v. City of Fairmont, 248 N.W.2d 708, 711 (Minn. 1976); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir. 1982); and New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981);
(8) controlling sites of crime problems, such as drug dealing and other illegal conduct: See, e.g., KEV, 793 F.2d at 1056, 1059; Grand Faloon Tavern, Inc., 670 F.2d at 949-51;
(9) concern about
sexual discrimination: See, e.g.,
Crownover v. Musick, 509 P.2d 497, 509 (Ca. 1973); Yauch,
514 P.2d at 711; American Booksellers
Ass'n, Inc. v. Hudnut, 771 F.2d 323, 325-29 (7th Cir. 1985), aff'd, 475
(10) debasement and
distortion of sex through crass commercialization: See, e.g., Paris Adult Theatre I v. Slaton, 413
Nude dancing establishments can be regulated like other SOBs using content-neutral time, place, and manner regulations. See Baby Dolls Topless Saloons, Inc. v. City of Dallas, Tex., 2002 WL 1339870 (5th Cir. 2002); LLEH, Inc. v. Wichita County, Tex., 289 F.3d 358 (5th Cir. 2002); Jake's, Ltd., Inc. v. City of Coates, 284 F.3d 884 (8th Cir. 2002); Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville and Davidson County, Tennessee, 274 F.3d 377 (6th Cir. 2001); Blue Canary Corp. v. City of Milwaukee, 270 F.3d 1156 (7th Cir. 2001); BZAPS, Inc. v. City of Mankato, 268 F.3d 603 (8th Cir. 2001); Moore v. Brown, 215 F.3d 1320 (4th Cir. 2000); Wise Enterprises, Inc. v. Unified Government of Athens Clarke County, Ga., 217 F.3d 1360 (11th Cir. 2000); D.H.L. Associates, Inc. v. O'Gorman, 199 F.3d 50 (1st Cir. 1999); Buzzetti v. City of New York, 140 F.3d 134 (2nd Cir. 1998); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998). Regulations must be content-neutral, that is, directed not at the expression in nude dancing but at the detrimental effects of such establishments. The regulation must further a substantial government interest. And, the regulation, must allow for “reasonable alternative avenues of communication..
Nude dancing may also be regulated through public indecency
ordinances that proscribe nudity in public places. The Supreme Court has
repeatedly upheld such ordinances. Barnes
v. Glen Theatre, Inc.,
501 U.S. 560 (1991) (plurality); City of
In City of
“The first factor of the O’Brien test is whether the
government regulation is within the constitutional power of the government to
“The second factor is whether the regulation furthers an
important or substantial government interest.”
The third factor is whether “the government interest is
unrelated to the suppression of free expression. The Court, as previously
stated, found that “Erie’s asserted interest in combating the negative
secondary effects associated with adult entertainment establishments … is
unrelated to the suppression of the erotic message conveyed by nude dancing.”
The fourth factor requires “that the restriction is no
greater than is essential to the furtherance of the government interest.”
Because the Court found that
Following City of
In Currence v. City
Cities and states should closely analyze regulations under
the four prongs of the O’Brien test.
For example, in Vaughn v. St. Helena Parish Police Jury, 192 F.Supp. 2d 562 (M.D.La. 2001), a Louisiana federal district court struck down
a public nudity ordinance for failing the 4th prong of the O’Brien test, requiring that the
restriction on speech not be greater than is essential. In Vaughn, a public
nudity ordinance that “prohibit[ed] the holder of a retail or wholesale dealer
license from permitting ‘any nude or partially nude person’ on the premises.”
Governmental entities should strive to ensure that they can
demonstrate that regulations do in fact further governmental interests as
mandated by the second prong of the O’Brien
test. In Essence, Inc. v. City of
285 F. 3d 1272 (10th Cir. 2002) petition
for cert. filed , 71 USLW 3094 (
The factual foundation for combating secondary effects
should be set forth clearly. This burden, however, is not stringent. The
Supreme Court allowed the city of
In Ranch House, Inc. v. Amerson, 146 F.Supp.2d 1180 (N.D.Ala. 2001),
the court accepted the state’s secondary effects contention based on testimony
in the state senate. An
Section 2 of the Twenty-first Amendment to the United States Constitution, provides:
The transportation or importation into any state,
territory, or possession of the
In California v. LaRue, 409 U.S. 109, 114 (1972), the Supreme Court held that “the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals.” See generally, Daniel A. Klein, Annotation, Supreme Court's Views as to Extent of States' Regulatory Powers Concerning or Affecting Intoxicating Liquors, Under Federal Constitution's Twenty-First Amendment, 134 L.Ed.2d 1015 (1999).
However, in 1996 the string of cases upholding broad SOB
regulatory power under the Twenty-first Amendment came to a halt with the
decision in 44 Liquormart, Inc. v. Rhode
Island, 517 U.S.
484 (1996). This case, dealing with liquor advertisements, had little to do
with sexually oriented businesses. However, in discussing the Twenty-first
Amendment, the Court dismissed the idea that the Twenty-first Amendment could
go where the First Amendment did not allow. The Twenty-first Amendment could
not prohibit protected speech. The Court explicitly “disavow[ed] the reasoning”
of California v. LaRue,
but, nevertheless, concluded that the states could “restrict…bacchanalian
revelries” regardless of whether alcohol was present. 517
While governmental entities may not rely on the
Twenty-first Amendment as a basis for regulating nude dancing, they remain free
to regulate the secondary effects of nude dancing. Furthermore, courts have
repeatedly recognized that the presence of alcohol increases the likelihood of
adverse secondary effects. As the U.S. Court of Appeals for the Seventh Circuit
has noted,“[l]iquor and sex are an explosive combination.” Blue Canary Corporation v.
In Department of Alcoholic Beverage Control v.
Alcoholic Beverage Control Appeals Bd. of California, 121 Cal.Rptr.2d 729 (Cal.App. 4
Dist. 2002), the proprietor of a nude dancing bar had been charged by the
California Department of Alcoholic Beverage Control with the violation of
California SOB laws. The laws forbid dancers in places serving alcohol from
exposing themselves within six feet of patrons and from touching themselves on
certain areas of their bodies. The lower court noted that “nude performances in
conjunction with the sale of liquor led not only to lewd conduct by customers
inside the business premises, but also to prostitution, indecent exposure, and
sexual assault in the vicinity.” 121 Cal.Rptr.2d at 735. The appellate court held
The court held that the
Although the combination of alcohol and nudity may create additional secondary effects justifying additional regulation, the legal analysis for regulating nude dancing establishments serving alcohol is identical to those that do not.
While the details of regulating nude dancing establishments have changed in the past thirty years, the broader picture has not. Cities and states may continue to regulate such establishments. As is the case with regulations imposed on other types of SOBs, regulations aimed at nude dancing establishments must be content neutral time, place, manner regulations designed to prevent adverse secondary effects. The presence of alcohol does not change this analysis, but it does enhance the likelihood of adverse secondary effects, since the combination of sex and alcohol is potentially explosive. Communities should also consider adopting ordinances prohibiting public nudity that are closely modeled after those approved in City of Erie and Barnes. Prudent drafters of such ordinances will be astutely aware of overbreadth concerns.