In an article entitled “The ABCs of SOBs” (SOBs being “sexually oriented businesses”), attorney Scott Bergthold lays out guidelines on how to draft constitutionally-sound regulations on strip clubs. Essentially, they’re his tips for towns looking to make life difficult for their neighborhood gentleman’s club. His main piece of advice: Since dance in all forms is usually considered a form of expression in the eyes of the law — and therefore protected under the First Amendment — go after everything but the dancing.
“Incorporate a clear statement that the purpose of the regulation is to address the secondary effects of, not the content of, adult speech,” he writes, suggesting tailor-made secondary effects like the plummeting area property values a strip club might bring with it.
It’s a seemingly byzantine practice, and a big reason why laws regulating strip clubs vary by municipality all over the country. Many clubs have a “6-foot rule,” requiring strippers to keep six feet away from customers while performing topless or nude. Other cities have zoning laws requiring strip clubs to be a certain distance from a school. There are rules about how much booze can be served as well as about how much of a breast must be covered (usually the nipple). In Las Vegas, for example, topless clubs may serve alcohol, but fully nude clubs may not — the only exception being if the club got its license before July 19, 1995 (which only one club did).
Regulations have become so specific, complex and difficult to remember that many clubs, like the Bareback Saloon in Wyoming, include them on their websites for clarity.
“The extreme detail is really bizarre,” says Judith Hanna, an anthropology professor at the University of Maryland and author of Naked Truth: Strip Clubs, Democracy and a Christian Right. Hanna has testified in more than 100 exotic-dance cases across the country. “I’d ask dancers with every case, ‘Who’s behind this legislation?’ They’d always say, ‘Reverend So-and-So or the Church of So-and-So.’ They can’t ban it, but they can regulate it to death.”
Hanna says it all goes back to the Puritans. “The waltz was considered obscene because people were touching,” she explains. “So we have a very long history of the church being opposed to dance.” (Think Footloose times a million.)
Much of striptease and exotic dance in the U.S. evolved out of burlesque. “The legend goes, part of a dancer’s costume fell off and the crowd went wild,” Hanna laughs. “So the entrepreneurs knew — follow the crowds and follow the money. Then, of course, it’s always some religious person or church that starts yelling.”
After that, actual legislation is pretty easy, Hanna says. “The people who have these values get elected to school boards, local councils and state legislatures.”
In Louisiana last summer, three dancers sued the state in federal court over a proposed law prohibiting women under the age of 21 to dance in strip clubs. “Entertainers whose breasts or buttocks are exposed to view shall perform only upon a stage at least 18 inches above the immediate floor level and removed at least 3 feet from the nearest patron and shall be 21 years of age or older,” it mandated. The state said the law was designed to protect women against trafficking; the dancers said it violated their constitutional rights to free expression and equal protection under the law.
Earlier this year, a federal judge temporarily blocked Louisiana from enforcing the law, “on the basis that the Act is impermissibly vague and overbroad, and thus violates Plaintiffs’ rights under the First and Fourteenth Amendments of the U.S. Constitution,” according to court papers. The case is now on appeal, pending before the U.S. Court of Appeals for the Fifth Circuit.
“The burden of proof when a fundamental right is taken away — like a First Amendment right to dance — is on the government to prove a compelling state interest, that there really is a big problem of underage drinking or they become sex prostitutes. In these cases, the government almost always loses,” says Alan Begner, a Georgia-based First Amendment lawyer who isn’t connected to the Louisiana case but has represented many adult businesses in his home state and won a similar case that went to the Georgia Supreme Court in 2009.
As for the specific regulations — like dancing on a stage 18 inches above the floor or 3 feet away from a customer — they’re designed to open people up to easy violations, Hanna says. “You’re in a club, the music’s going, it’s hard to remember the inches, right?” she explains. “Undercover agents go into these clubs, and they can catch somebody violating [a law].”
And if a stripper happens to work at two different clubs across the county line from each other? “It’s very difficult for [dancers] to know what they can do where,” Hanna says.
It’s also, per supporters of the Louisiana law, an act of God. Or better put, a ploy to invite godliness. During legislative debate last year, Rep. Robby Carter said of the strippers, “We need to do something to get these people [to] recognize that there’s another way of living. … I wish there was something we could do to make [erotic dancers] go to church or something,” according to court documents.
“Prayer action groups become political action committees,” Hanna says. “They train lawyers. They offer legal services. They distribute pamphlets on fighting adult entertainment. Pastors can put voter guides in their church pews.”
That’s why she continues to advocate for dancers and testify on their behalf in court. “A lot of people think that what goes on in a strip club is just somebody shaking their private parts,” she says. “With my perspective as an anthropologist, I’m able to explain how it’s a form of dance, communication and art.”
Stripping continues to be protected under the First Amendment — if only from six feet away, without the presence of alcohol, and with pasties ensuring that there isn’t a nipple in sight.
