By David L. Hudson Jr., First Amendment Scholar
November 15, 2002
First Amendment freedom of expression is directly at stake in the ongoing struggle between purveyors of adult entertainment and defenders of public decency.
Many people do not understand why pornography and nude dancing would be considered forms of protected expression, but in fact the First Amendment protects many forms of controversial speech and expression.
Supporters of the billion-dollar adult-entertainment industry argue that nude dancing, for instance, deserves no less First Amendment protection than more mainstream forms of performance. They say it contains the same elements of eroticism found in so-called “legitimate” theater and dance.
Yet cities and towns wield an array of restrictions that can be levied on adult businesses. These include restrictions on zoning, licensing, clothing, hours of operation and patron-performer buffer zones, to name just a few.
When adult-club owners fight these regulations in the courts, cities often pass new legislation, leading to more regulations and more lawsuits. The cycle has resulted in the development of a substantial body of First Amendment case law, which serves to address the continuing tension between government efforts to regulate the adult-entertainment industry and the industry’s attempts to claim First Amendment protections.
But it is clear from U.S. Supreme Court decisions that the Court believes the Constitution protects expressive conduct, and that it does not equate nudity with obscenity.
And though two types of pornography, obscenity and child pornography, receive no First Amendment protection, the First Amendment generally protects pornography that does not fall into these categories — at least for adult viewers. (Sometimes material is classified as “harmful to minors.”)
Even a 1986 Attorney General Commission Report on Pornography said that “not all pornography is legally obscene.” The question becomes which types of pornography cross the line into the unprotected areas of obscenity and child pornography. To put it another way, courts often struggle with whether pornography is too “hard core.”
Local officials, meanwhile, struggle with what they call the “secondary effects” of adult businesses — increases in crime and decreases in property values in the neighborhoods where they locate. Municipalities, officials say, must be allowed to prevent blight and red-light districts by regulating nude-dancing clubs and adult bookstores.
The fundamental First Amendment principles that apply in the context of adult content and entertainment are as follows:
“The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.”
Adult entertainment may offend; it may fail to appeal to the higher intellect. But First Amendment protection for adult establishments affects more than disrobing dancers. It affects all who care about constitutional freedoms.