On September 7, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued its opinion in the case of 84 Video/Newsstand, Inc. v. Sartini. There, the panel upheld two regulations regarding sexually oriented businesses that had been imposed by the Ohio legislature.
In this column, I’ll briefly describe the Ohio regulations, and then consider two of the most interesting First Amendment arguments that were raised—although unsuccessfully—by the sexually oriented businesses in the case.
The Regulations at Issue, and Their Basis
The first Ohio regulation states that a sexually oriented business cannot operate between midnight and 6:00 a.m.—unless it holds a liquor permit setting different hours for its operation, and does not conduct, offer, or allow sexually oriented entertainment activity in which performers appear in the nude.
Violations of either of the regulations are deemed misdemeanor offenses under Ohio law.
Before passing the regulations into law, the Ohio Legislature heard evidence to the effect that—and made findings that—sexually oriented business are associated with adverse “secondary effects” including “lewdness, public indecency, prostitution, potential spread of disease, illicit drug use and drug trafficking, personal and property crimes, negative impacts on surrounding properties, blight, litter, and sexual assault and exploitation.”
Such effects are known as “secondary effects,” pursuant to case law—including, most prominently, the U.S. Supreme Court’s 1991 decision in Barnes v. Glen Theatre Inc., regarding nude dancing.
In Barnes, the High Court ruled that nude dancing falls within the First Amendment—although, according to a plurality of Justices, only “marginally so.” (The Barnescase splintered the Court, such that there was no majority opinion. Thus, each of the various opinions is well worth reading, in order to get a nuanced sense of the Justices’ views and how they fit together.)
Despite the splintered opinions in Barnes, the Court’s bottom line was this: Due to the negative “secondary effects” that may follow when establishments offer nude dancing, such establishments can be regulated as long as there is evidence that they do, indeed, create such effects.
In the Sixth Circuit case, after the district court granted summary judgment upholding the regulations at issue, the sexually oriented businesses appealed, raising a number of arguments.
With respect to each argument, however, the businesses lost and the regulations were upheld—without any trial ever being conducted.
A Trial on Secondary-Effects Evidence Would Have Been Very Useful Here
One of the two most interesting issues the Ohio case raises, in my view, is why a trial did not occur here, regarding the secondary effects of the businesses’ operations.
Granted, the Ohio legislature had, at least, collected evidence of secondary effects before passing the regulations into law. However, the businesses argued that this evidence did not show that their own operations caused the secondary effects at issue. Rather, they contended, the evidence simply showed that the evils that the state described existed, but not that they were responsible for them.
Thus, the businesses suggested that other causal factors could well have played a role—and even a decisive role—in creating these baleful effects. And indeed, the businesses offered their own contrary evidence, from their own expert, suggesting that they were not the ones causing these effects.
I believe that the presence of plausible evidence on both sides strongly suggests that a trial should have been held here. Moreover, not only were there two evidentiary sides to this story, but the Sixth Circuit panel itself admitted that the businesses’ expert’s evidence was “directly relevant to the central issue in this case and, if accurate, does tend to cast doubt on the Ohio General Assembly’s evidence.”
Even by the panel’s own description, then, this sounds like a case where a trial would have been appropriate.
The Sixth Circuit panel pointed out—in defense of its decision to forego a trial—that the standard that the legislature’s evidence must meet, in this context, is quite low. But just because the standard is low, does not mean that a court can simply assume that the standard would be met, if a trial were conducted.
The advantage of a trial, of course, is that it offers a search for truth—one that is based on the best rules that our society has been able to devise over time for ascertaining the truth. And in the First Amendment context, especially, we need to know precisely what the truth is, before we accept censorship as a supposed necessity, and blame mere free expression for society’s ills.
The Businesses’ Argument That Nude Touching in a Performance Context Is First-Amendment-Protected Is Interesting and Potentially Strong
In addition to challenging the government’s claims as to causation, the businesses also argued that the no-touching restriction in itself violates the First Amendment.
In my view, this is the most interesting of all the arguments that this case raised—and the one that may have the potential for U.S. Supreme Court review.
On this point, too, the businesses offered evidence, as the Sixth Circuit panel explained: “Dr. Judith Hanna, an expert in dance and the communicative aspects of dance, testified about the messages that exotic dance performances communicate. Joseph Hall, who works with adult cabarets, also described communicative touching between performers, including in the course of skits entered into a national competition.”
But again, unfortunately—despite another submission of credible evidence by the businesses—the court saw no need for a trial, which, in this context, would have tested the possible expressive aspects of the kind of touching that was at issue.
Why the Case for Nude Touching on Stage Is Stronger than the Case for Nudity On Stage
This argument that touching while nude is expressive is, I think, quite different from the argument that was made in the U.S. Supreme Court’s Barnes case: that nudity in itself is expressive.
In Barnes, certain Justices reasoned that there was no First Amendment right simply to be nude, because nudity is not inherently expressive. In their view, nudity is a mere status, not an act of communication. (Hence, standing around nude on a public beach can be prohibited and punished, consistent with the First Amendment.)
Thus, in Barnes, it was argued that the dancers’ First Amendment rights were sufficiently preserved by their ability to do the very same dance that they had performed nude, but to do it in pasties and a G-string.
There, certain Justices saw nudity as a status, not an expressive activity in itself. And the status/conduct distinction is one that is deeply embedded in American law.
But the Ohio anti-touching regulation is different. Touching—including touching while nude—plainly isn’t just a status. It is obviously an action and, when there is an audience watching, it is surely an expressive action.
Thus, the easy way out that some Justices took in Barnes—by deeming nudity a mere status and thus, non-expressive and non-First-Amendment-protected—is foreclosed here.
That point gives rise to an interesting irony. Let’s assume I am right that touching while nude—especially if it is done on stage, pursuant to direction—is more strongly constitutionally protected than simply being nude on stage. Ironically, then, the very same observers who would be shocked by on-stage nudity would probably be doubly scandalized by on-stage nude touching.
By this logic, the more “offensive” action—which in objectors’ eyes would cause more harm—would also be more heavily constitutionally protected.
In the end, I believe that one reason that courts have wrestled with the issue of nude dancing and nude performances generally, and found this issue so difficult, is that they want to protect high-culture nudity (for instance, in the Broadway musical “Hair,” where the cast typically ends the play in the nude) but also ban low-culture nudity. And that can’t consistently be done.
In my view, the businesses that lost before the Sixth Circuit should consider trying for Supreme Court review on their expressive touching argument, for it’s potentially a strong one.
Moreover, with the Court’s composition having significantly changed since Barneswas decided twenty years ago, the Justices’ analysis of the issue may well be somewhat different than the analysis a different line-up of Justices provided, on a significantly easier issue, in Barnes.
JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.
This column originally appeared in Justia‘s Verdict.