The First Amendment protects much more than the spoken or printed word. It also protects various forms of symbolic speech and expressive conduct. The Supreme Court has ruled that even nude performance dancing is a form of expression that when restricted, require First Amendment review.
Overruled (in part)
Appellant Kirby is the director of the Department of Alcoholic Beverage Control, an administrative agency vested by the California Constitution with primary authority for the licensing of the sale of alcoholic beverages in that State, and with the authority to suspend or revoke any such license if it determines that its continuation would be contrary to public welfare or morals. Art. XX, § 22, California Constitution. Appellees include holders of various liquor licenses issued by appellant, and dancers at premises operated by such licensees. In 1970 the Department promulgated rules regulating the type of entertainment that might be presented in bars and nightclubs that it licensed. Appellees then brought this action in the United States District Court for the Central District of California under the provisions of 28 U. S. C. §§ 1331, 1343, 2201, 2202, and 42 U. S. C. § 1983. A three-judge court was convened in accordance with 28 U. S. C. §§ 2281 and 2284, and the majority of that court held that substantial portions of the regulations conflicted with the First and Fourteenth Amendments to the United States Constitution.Concerned with the progression in a few years' time from "topless" dancers to "bottomless" dancers and other forms of "live entertainment" in bars and nightclubs that it licensed, the Department heard a number of witnesses on this subject at public hearings held prior to the promulgation of the rules. The majority opinion of the District Court described the testimony in these words:
"Law enforcement agencies, counsel and owners of licensed premises and investigators for the Department testified. The story that unfolded was a sordid one, primarily relating to sexual conduct between dancers and customers. . . ." 326 F. Supp. 348, 352.
References to the transcript of the hearings submitted by the Department to the District Court indicated that in licensed establishments where "topless" and "bottomless" dancers, nude entertainers, and films displaying sexual acts were shown, numerous incidents of legitimate concern to the Department had occurred. 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.
Appellant is a town attorney in Nassau County, N. Y., who, along with other local law enforcement officials, was preliminary enjoined by the United States District Court for the Eastern District of New York from enforcing a local ordinance of the town of North Hempstead. Salem Inn, Inc. v. Frank, 364 F. Supp. 478 (1973), aff'd, 501 F. 2d 18 (CA2 1974). In addition to defending the ordinance on the merits, he contends that the complaint should have been dismissed on the authority of Younger v. Harris, 401 U. S. 37 (1971), and its companion cases.
In 1973, appellants began operating an adult bookstore in the commercial zone in the Borough of Mount Ephraim in Camden County, N. J. The store sold adult books, magazines, and films. Amusement licenses shortly issued permitting the store to install coin-operated devices by virtue of which a customer could sit in a booth, insert a coin, and watch an adult film. In 1976, the store introduced an additional coin-operated mechanism permitting the customer to watch a live dancer, usually nude, performing behind a glass panel. Complaints were soon filed against appellants charging that the bookstore's exhibition of live dancing violated § 99-15B of Mount Ephraim's zoning ordinance, which described the permitted uses in a commercial zone, in which the store was located, as follows:
"B. Principal permitted uses on the land and in buildings.
"(1) Offices and banks; taverns; restaurants and luncheonettes for sit-down dinners only and with no drive-in facilities; automobile sales; retail stores, such as but not limited to food, wearing apparel, millinery, fabrics, hardware, lumber, jewelry, paint, wallpaper, appliances, flowers, gifts, books, stationery, pharmacy, liquors, cleaners, novelties, hobbies and toys; repair shops for shoes, jewels, clothes and appliances; barbershops and beauty salons; cleaners and laundries; pet stores; and nurseries. Offices may, in addition, be permitted to a group of four (4) stores or more without additional parking, provided the offices do not exceed the equivalent of twenty percent (20%) of the gross floor area of the stores.
"(2) Motels." Mount Ephraim Code § 99-15B (1), (2) (1979).
Section 99-4 of the Borough's code provided that "[a]ll uses not expressly permitted in this chapter are prohibited."Appellants were found guilty in the Municipal Court and fines were imposed. Appeal was taken to the Camden County Court, where a trial de novo
was held on the record made in the Municipal Court and appellants were again found guilty. The County Court first rejected appellants' claim that the ordinance was being selectively and improperly enforced against them because other establishments offering live entertainment were permitted in the commercial zones.
Those establishments, the court held, were permitted, nonconforming uses that had existed prior to the passage of the ordinance. In response to appellants' defense based on the First and Fourteenth Amendments, the court recognized that "live nude dancing is protected by the First Amendment" but was of the view that "First Amendment guarantees are not involved" since the case "involves solely a zoning ordinance" under which "[l]ive entertainment is simply not a permitted use in any establishment" whether the entertainment is a nude dance or some other form of live presentation. App. to Juris. Statement 8a, 12a. Reliance was placed on the statement in Young
v. American Mini Theatres, Inc.,
427 U. S. 50, 62 (1976), that "[t]he mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances." The Appellate Division of the Superior Court of New Jersey affirmed appellants' convictions in a per curiam
opinion "essentially for the reasons" given by the County Court. App. to Juris. Statement 14a. The Supreme Court of New Jersey denied further review. Id.,
at 17a, 18a.
Overruled (in part)
452 U.S. 714 (1981) NEW YORK STATE LIQUOR AUTHORITY v. BELLANCA, DBA THE MAIN EVENT, ET AL. No. 80-813. Supreme Court of United States. Decided June 22, 1981. ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.PER CURIAM. The question presented in this case is the power of… Read more
Overruled (in part)
479 U.S. 92 (1986) CITY OF NEWPORT, KENTUCKY, ET AL. v. IACOBUCCI, DBA TALK OF THE TOWN, ET AL. No. 86-139. Supreme Court of United States. Decided November 17, 1986 ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITPER CURIAM. In 1982, the City Commission… Read more
An Indiana public indecency statute prohibits, among other things, appearing nude in public. Two adult entertainment establishments and an erotic dancer sued to prevent enforcement of this statute as it applied to nude dancing. The trial court eventually held that nude dancing is not expressive activity protected by the First Amendment and upheld the statute. The Seventh Circuit Court of Appeals reversed, holding that non-obscene nude dancing is entitled to First Amendment protection.
When speech and non-speech elements are combined in the same course of conduct (such as burning a draft card), the government can regulate that conduct if (1) the regulation is within the constitutional power of the government, (2) the regulation furthers a substantial governmental interest, (3) the governmental interest is unrelated to the suppression of free expression, and (4) the incidental restriction on the speech element of the conduct is not greater than necessary to further the substantial governmental interest. United States v. O'Brien, 391 U.S. 367 (1968).