3 Geo. J. Gender & L. 275 (2001-2002)
Nude Dancing

handle is hein.journals/grggenl3 and id is 283 raw text is: NUDE DANCING
1.  DETERMINING WHETHER NUDE DANCING RECEIVES FIRST
AMENDMENT PROTECTION ..............................                        275
II.  DISTINGUISHING MERE DANCING FROM EXPRESSIVE CONDUCT: THE
SPLINTERED DOCTRINE OF BARNES AND PAP'S A.M..............                  277
III.  PERMISSIBLE STATE AND MUNICIPAL REGULATION OF NUDE
DANCING        ....................................................        281
A.   No CONTACT AND BUFFER ZONES .....................                      281
B.   LIGHTING REQUIREMENTS ...........................                     285
C .  ZONING   ........................................                     286
D.   LICENSING REQUIREMENTS ..........................                      288
I. DETERMINING WHETHER NUDE DANCING RECEIVES
FIRST AMENDMENT PROTECTION
The legal basis for protection of nude dancing has evolved under the First and
Fourteenth Amendments of the United States Constitution' and in the various
states under similar constitutional provisions.2 The First Amendment does not
protect the right to be in a state of nudity'3 because it is not an inherently
expressive condition,4 but the Constitution preserves the right to convey an erotic
message through conduct such as nude dancing.5 Nude dancing falls at the outer
I. See U.S. CONST. amend. I; U.S. CONST. amend. XIV.
2. See, e.g., PA. CONST., art. I  7 (the free communication of thoughts and opinions is one of the
invaluable rights of man, and every citizen may freely speak, write and print on any subject, being
responsible for the abuse of that liberty).
3. City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000) (plurality opinion) (O'Connor, J.).
4. See Barnes v. Glen Theatre, 501 U.S. 560, 581 (1991) (Souter, J., concurring) (IN]udity per se is
not [inherently expressive]. It is a condition, not an activity, and the voluntary assumption of that
condition, without more, apparently expresses nothing beyond the view that the condition is somehow
appropriate to the circumstances.); Furfaro v. City of Seattle, 984 P.2d 1055, 1059 (Wash. Ct. App. 1999)
(public nudity is conduct that has no constitutional protection), aff'd 27 P.3d 1160 (Wash. 2001).
5. See City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000) (plurality opinion) (nude dancing is
protected speech under First Amendment); Barnes v. Glen Theatre, 501 U.S. 560, 565 (1991) (plurality
opinion) (Several of our cases contain language suggesting that nude dancing of the kind involved here
is expressive conduct protected by the First Amendment. (citing Schad v. Borough of Mount Ephraim,
452 U.S. 61,66 (1981), Doran v. Salem Inn, Inc. 422 U.S. 922, 932 (1975), and California v. LaRue, 409
U.S. 109, 118 (1972))); see also City of Erie v. Pap's A.M., 529 U.S. 277, 318 (2000) (Stevens, J.,
dissenting) (the erotic messages conveyed by the dancers to a willing audience are a form of expressive
conduct protected by the First Amendment); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66
(1981) (nude dancing is not without its First Amendment protection from official regulation); Blue
Moon Enter., Inc. v. Pinellas County Dep't of Consumer Prot., 97 F. Supp. 2d 1134, 1139 (M.D. Fla.
2000) (It is well settled law that erotic nonobscene printed matter, films, and live adult entertainment are
expressive conduct under the First Amendment.); R.W.B. of Riverview, Inc. v. Stemple, 111 F Supp. 2d
748, 755 (S.D. W. Va. 2000) (nude dancing remains expressive conduct within the First Amendment's
protection); 801 Conklin St. Ltd. v. Town of Babylon, 38 F Supp. 2d 228, 231-32 (E.D.N.Y. 1999) (The
expressive content of the dance performances, performed by independent professional artists and/or

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