Eminent Domain

Trouble is brewing in Ohio for fans of exotic dancing. A "stripper bill" is on its way out of the Senate, headed to the governor, and expected to become law. Here is what the bill does...

The measure would force strip clubs, adult bookstores, peep shows and other adult entertainment venues to close between midnight and 6 a.m. Those with liquor licenses could stay open until last call, but nudity would be banned after midnight. Partial nudity would be allowed, but dancers would have to conform to the existing state law by wearing at least G-strings and pasties.

It also institutes a no-touch rule between patrons and nude or partially nude dancers. It would be a first-degree misdemeanor to touch someone's clothed or unclothed private parts and a fourth-degree misdemeanor to touch other body parts.

I'm a little confused by the wording in the article. It says that nudity would be banned after midnight, but partial nudity would be allowed if the dancers conform to existing law that requires G-strings and pasties. So, is total nude dancing allowed (the previously mentioned "nudity"), just before midnight? Or are the G-string/pasties requirements considered "nudity" and always in effect, even before midnight? Or am I just reading this wrong? I have no idea. Whatever.

Now, onto the really juicy stuff...

Strickland press secretary Keith Dailey said the governor did not find constitutional flaws in the bill, which received wide support in the House and Senate.

Ah, the constitutionality question. Does this bill pass muster?

Well, stripping does have some First Amendment protections. The Court considers it expressive conduct, sort of like miming but hotter. The case on point that immediately comes to mind is Barnes v Glen Theater, Inc. In Barnes, the Court dealt with a law banning public nudity and requiring the wearing of G-strings and pasties. The Rehnquist, O'Connor, Kennedy plurality upheld the ban, but they stated that stripping was "expressive conduct within the outer perimeters of the First Amendment." The G-string/pasties requirement was a minimal restriction, so it was allowed. It still let the speaker (or stripper, in this situation) express her message. Barnes was anything but clear, though. The plurality picked up two votes from Scalia and Souter, both filing separate and very different concurrences based on very different reasoning.

There are limits to the First Amendment protections, though. In Schultz v. City of Cumberland, the Seventh Circuit Court of Appeals ruled that it was constitutional to ban totally nude dancing. The court applied the framework laid out in Barnes and another case, City of Erie v Pap's AM. As an aside, that case also said that banning particular movements or actions by the dancer was unconstitutional. Legislators can't be correographers, I guess.

Buffer zones are another issue. Lower federal courts have upheld some dancer-customer buffer zones, while a few others have struck them down. The trend seems to be to uphold the buffers, though. If you're interested in more of the caselaw in this area, I recommend this page by the First Amendment Center. I used it as a refresher while writing this post.

I'm not exactly sure what a court would do with this law. I think that most of this law is easily constitutional under the current caselaw. The Court does not have an absolutist view of First Amendment rights. Some restrictions are allowed (time, place, and manner restrictions, generally applicable laws, etc.). Here, the state is only slightly regulating the expressive conduct, like the distance and coverage requirements. These have been upheld, as stated previously. I think that a court would uphold the G-string and pasties requirements.

However, the touching penalties seem a bit troublesome. Simply touching someone anywhere on their body is considered a fourth-degree misdemeanor, a crime. Sure, it's a minor crime, but it's a crime nonetheless. My gut reaction is that that part of the law wouldn't be enforced in practice. Are the police really going to charge a dancer for touching a customer's shoulder? I'm skeptical. However, I'm not from Ohio so I can't really speak about what their police would do. The other touching restriction, the "private parts" touching, seems like an easier call.

Personally, I think that the law is pretty silly. If you don't like these clubs, don't go to them. Of course, silly does not mean unconstitutional. Under the current caselaw, I think that this is Ohio's decision to make.