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Dancing On The Perimeters Of The First Amendment

Dancing On The Perimeters Of The First Amendment

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on December 3, 2008. I have not visited the Klassy Cat on West Henrietta Road, but I am told that it features pole dancing. Ugh, you say, pole dancing is strip tease by another name. You concede that it is expressive conduct protected by the Free Speech Clause. But, you quote approvingly Chief Justice Rehnquist that nude dancing “is within the outer perimeters of the First Amendment, though we view it as only marginally so.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991). Then, what do you say about Stephanie Barnes? She is a dance and fitness instructor. In March of this year she sought a permit from Adams Township outside Pittsburgh to open a studio, to be known as Oh my You’re GORGEOUS. The code enforcement officer denied her application. The reason? He considered her an “adult business” and her studio would be too close to a residential district. What does Stephanie teach that might be “characterized by an emphasis on matter depicting … sexual activities,” the town’s definition of an adult business? Pole dancing! And hoop aerobics, strip tease, power lap dance, stiletto strut, belly dancing, salsa dancing, kick boxing, pilates, and “SeXXXercise” (an ab workout). Now the pole dancing taught by Stephanie is very different from what the Klassy Cat offers, I presume. It is a strenuous “workout that combines aerobics, dance, yoga, (and) strength training.” It is practiced fully clothed and without spectators. Stephanie wants women to have fun, feel confident about their bodies, and express their sexuality. The code enforcement officer studied Stephanie’s website. He found her description of the classes, her logo (a high-heeled shoe), and her color scheme (pink and black) to be “provocative” and full of “sexual innuendo.” The Zoning Board of Appeals upheld his denial of the permit. Stephanie sued. She claimed that the town’s adult business ordinance did not apply to her because she was not operating such a business. If the definition of adult business was broad enough to include her, then the ordinance was unconstitutional as applied to her. On the latter claim, Stephanie was on solid footing. The First Amendment protects not only verbal communications but also certain forms of symbolic or expressive conduct. The conduct may take a form that some people “may find shabby, offensive, or even ugly.” U.S. v. Playboy Entertainment Group, 529 U.S. 803, 826 (2000). Sexual expression is protected speech so long as it does not cross the line into obscenity, Miller v. California, 413 U.S. 15 (1973), or child pornography, New York v. Ferber, 458 U.S. 747 (1982). Dance is an expression of emotions and ideas. Pole dancing as practiced by Stephanie fits within this definition and is fully protected speech. Fortunately, Adams Township wizened up and two months ago granted Stephanie a permit as part of a settlement. In return, she agreed to comply with various conditions that would prevent her from turning Oh my You’re GORGEOUS into a Klassy Cat, such as no nudity and no sale of sex toys. I wonder. Do you think that the owner of the Klassy Cat could be persuaded to change the use of his establishment to a dancing and fitness studio, like Oh my You’re GORGEOUS, and cater just to women? Or, is there more money to be made dancing on “the outer perimeters of the First Amendment?”

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