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The First Amendment: What Makes the United States
Stand Out From the Rest of the World
The First Amendment protects freedom of expression. All forms
of expression. Speech, literature, art, journalism, dance. Even
conservatives agree that dance is an expression protected by
the First Amendment. So why is there a controversy over nude
dancing? To be expressive, dance doesn't have to be classical;
doesn't have to be good; it just has to express a feeling or
messsag -- So what the problem boils down to is this:
Some people are very uncomfortable with, or even
disturbed by, nudity.
Let's face it: the legality of dancing naked is unquestioned
when it happens in the movies, in your home, on a nude beach,
in a novel, on a theater stage, on cable tv – but if it
happens in a bar, where no minors are allowed, and where the
patrons are all aware of the entertainment to be offered, then
some people have a big problem with it.
O.K. - Nudity Has Its Place
The best argument against allowing nude dancing in taverns
is that it's the type of activity that attracts secondary crime.
Critics argue that sex crimes, street crime, and prostitution
happen with more regularity near places offering nude dancing.
But the problem with outlawing it is this: no matter how you
define it, what you're outlawing is the nudity aspect of the
dance. Now, no one claims there is a constitutional amendment
protecting the right to be naked in public.
It Can Be Offensive
And I do not advocate public nudity, as public mores find
that offensive. But, the controversy at hand is whether, in the
confines of a controlled setting such as a bar, where admission
is limited to adults, and there is no surprise as to what is
being offered, nude dancing should be illegal. Less-than-naked
dancers do the same things, dance in the same ways, with scanty
covering – and some would say that is sexier than total
nudity. Is there really more crime because the dancers have removed
that last six square inches of covering? Or is this really not
about freedom of expression at all? But about morality and decency?
Obscenity should remain in the hands of the communities, which
may regulate activities based on community standards. No argument
there. But, if the argument is made that nude dancing has no
protection under the First Amendment, then I would disagree.
Consider the case of Kandyland v. City of Erie, 553 Pa. 348;
719 A.2d 273 (1998). Kandyland, a bar which featured nude women
dancers, complained that a local ordinance forbade that kind
of activity. The law said that a "person who knowingly or
intentionally in a public place" . . . "appears in
a state of nudity . . . commits Public Indecency, a Summary Offense."
Nudity was defined as:
the showing of the human male or female genital
(sic), pubic area or buttocks with less than a fully opaque covering;
the showing of the female breast with less than a fully opaque
covering of any part of the nipple; the exposure of any device,
costume, or covering which gives the appearance of or simulates
the genitals, pubic hair, natal cleft, perineum anal region or
pubic hair region; or the exposure of any device worn as a cover
over the nipples and/or areola of the female breast, which device
simulates and gives the realistic appearance of nipples and/or
areola.
Public places, according to the law, included "all buildings
and enclosed places owned by or open to the general public, including
such places of entertainment, taverns, restaurants, clubs, theaters,
dance halls, banquet halls, party rooms or halls limited to specific
members, restricted to adults or to patrons invited to attend,
whether or not an admission charge is levied."
The Supreme Court Will Decide the Issue: Is Dancing
While Naked Constitutionally Protected Freedom of Expression?
The constitutional challenge has been carried all the way
to the Supreme Court, which heard arguments last month and will
render a decision in June. The Supreme Court of Pennsylvania
struck down the ordinance. In its analysis of the issue, it held
that nude dancing was a form of expression, that it was protected
by the First Amendment, that the particular ordinance was "content
related" (rather than "content neutral") in that
it was directed at a certain kind of content of speech or expression,
that as such, it is subject to a strict scrutiny analysis, and
that, the very reason the city prohibited the activity (because
it evoked thoughts, feelings, and emotions which led to secondary
crime) is also the reason it cannot be prohibited. The Constitution
protects freedom of expression. What makes speech "expressive"
is that it communicates thoughts, feelings, and emotions.
Pennsylvania Supreme Court Justice Castille, in his concurring
opinion, said:
"Since the state permits the dancers to perform
if they wear pasties and G-strings but forbids nude dancing,
it is precisely because of the distinctive, expressive content
of the nude dancing performances in this case that the State
seeks to apply the statutory prohibition. It is only because
nude dancing performances may generate emotions and feelings
of eroticism and sensuality among the spectators that the State
seeks to regulate such expressive activity, apparently on the
assumption that creating or emphasizing such thoughts or ideas
in the minds of the spectators may lead to increased prostitution
and the degradation of women. But generating thoughts, ideas,
and emotions is the essence of communication. The nudity element
of nude dancing performances cannot be pigeonholed as mere "conduct"
independent of any expressive component of the dance."
The Supreme Court should uphold the Pennsylvania decision.
Where no riot is incited, no hatred is spread, no false stampede
is triggered, individuals must be free to communicate freely.
Freedom of expression is no freedom at all, if it is allowed
to be controlled by anyone but the individual expressing the
thought.
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Not Meant to be Covered by the Constitution
Are you serious Robin, are you telling me the liberals have
stretched the Constitution so razor thin that nude dancing will
be protected under the Constitution? Let's go ahead and make
it a Fundamental Right! The obvious argument is best introduced
with a question: did the founders, during the process of writing
the Constitution, think of nude dancing when envisioning, creating,
and writing the 1st Amendment? Of course not. However, there
have been rights added and protected under the Constitution that
were not written by the founding fathers so then the question
is where to draw the line?
Obviously the Supreme Court is the body to decide that issue
but just in case they read my article before rendering their
decision I could perhaps shed some light on the subject. The
Constitution protects free speech, no argument there from me,
but is nude dancing a freedom of speech or expression that should
be protected? I think not. I believe that there are some acts
of expression so powerful, and with words so profound that need
to be uttered. These words and acts are so powerful that they
may effect this Country and its people and what's more, are so
important to maintaining our way of governing, that they must
be spoken and shown and be protected under law. The words and
acts in question must be taken on a case by case basis but first
we must look to the importance of the words or actions.
In this case, the actions of these men and women are what? Are
they making a bold political statement for or against our government,
in taking off their clothes are they thinking about the theories
of free speech and expression and the foundations of which that
were laid out by European thinkers such as John Locke and developed
in the 17th, 18th, 19th, and 20th centuries. Yes, that's what's
in their hearts as the corny music begins and the girl or guy
comes out with that laughable expression of lust, unbelievable
to all but a teenage boy and one or two people at the bar. No,
of course these men and women don't give a rat's ass about such
things, and if they say they do they're lying. The almighty dollar,
all giving symbol of power, wealth, and status, is the only thing
they believe in I'm afraid. This expression (dancing erotically,
for the giver a chance at a buck, and the givee for fantasies
to somehow come true but never do) does not warrant protection.
The expression itself is inherently not political in any way
shape or form, it's censure by law would not effect, for better
or worse, the Constitution, USCA, or any other major body of
Federal Law. Nor would anyone's rights be violated if the Supreme
Court refused to protect it under the 1st Amendment because if
nude dancing is abolished in one town the stripper is free to
move elsewhere to ply their all to naughty vocation. Well, what
other options are there? If the Supreme Court cannot make nude
dancing into law then maybe Congress can pass a bill making nude
dancing legal across the land and if that didn't work I'm sure
our current President would have no objections, and actually
would embrace the idea of a Presidential Order making nude dancing
legal all across America.
Should There be No Local or State Government, Only Federal?
If the Supreme Court did rule in favor of the strippers in
the case we're talking about isn't that an infringement on local
and state law? Sure, you somehow tie the commerce clause to it
and anything can be made Federal law, but shouldn't the state
and local governments at least be able to have what they want
in their town or hamlet. Have we gotten to the point where idealistic
judges who have never been to the town (in this case Erie, Pennsylvania)
be allowed to sit in judgement and effect the lives of people
they've never met in a town they will never live in? Allow the
local governments to have what they wish and not have what they
don't wish instead of making and end run around the Constitution
having, in the town in question, undesirables. I know liberals
at this moment are chomping at the bit with anxiety, ready to
say, "well, 50 years ago that would have been African Americans."
Sorry liberals, there's a difference.
The Line Must be Drawn Here!
No, the line must be drawn here, at this place, at this time.
I could get into the argument of the moral decay of this Country
but I won't. This is an argument involving the infinite stretching
of the Constitution. There have been inclusions during the years
our Country has been in existence that have been welcomed and
needed. Those inclusions have served useful purposes that had
legitimate reasons for being protected. But when nude dancing
is stripped down to its barest essentials, nothing remains but
naked truth, that is, money in exchange for a fantasy. That's
it, nothing more. Is that what we want in our Constitution, legal
nude dancing? How proud and patriotic that makes me feel, what
a piece of work! Jefferson would have been delighted, that's
for sure! In all seriousness, we can't protect every word and
every behavior, I think even liberals would agree with me on
that note. There are words and actions that are not acceptable
to anyone. However, in this diverse society in which we live
people are ever changing and willing to accept all kinds of actions
as normal. In New York City there are bars in which people, truly
believing themselves to be vampires, drink each other's blood.
To them that behavior is normal, to most of society it is not.
Will one day that be challenged by local ordinances and will
lawyers ask blood drinking be protected under the 1st Amendment?
How far will we go or are willing to go?
In the end we must all be able to live together in relative peace
and harmony, that means accepting things some of us may hate
and others love, that much is clear and unarguable. However,
there are some actions, having nothing to do with free speech
and expression, and that are found distasteful in a certain section
of our great Nation, that should not be protected. That is how
we compromise and live together; accepting some words and acts
while rejecting others. These strippers can work elsewhere, the
expression of nude dancing is not summarily banned across the
United States, just not protected under the 1st Amendment. In
fact, if there were ever a Congressional Bill making nude dancing
illegal I would be opposed because of the very fact that local
folks can and should decide what kind of environment they live
in.
For the people who disagree with me, remember the argument and
one day, one year or one decade from now, when you're working
in some city or town in the United States and there is a word
or action which offends you remember that you should have the
right to pass laws effecting your local environment, yourself,
your kids, grandchildren, mom, dad, grandmother and grandfather.
The action may not be nude dancing, it may be something else
that offends and possibly injures your children. Maybe it threatens
the way of life you love, remember this argument; that we can
all get along but it takes compromise and compromise always comes
at a price to someone, but that is the price of a republic. In
some cases something you like may become protected, in other
cases the thing you hate may become protected but it is all compromise.
In this case, the citizens of Erie, Pennsylvania do not want
nude dancing in their town, what is more important, the fact
that the citizens of that town can effect their surroundings
by law, that they have some control over their environment, or
that exotic entertainers be allowed to dance nude? The choice
belongs to the people it effects, nude dancing should, and will
be, banned. |
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