Constitutional Law: Is Pole Dancing a Form of Free Speech?

Posted By Cliff Tuttle | August 31, 2008

Posted by Cliff Tuttle

Adams Township is a growing community in Southern Butler County, located on Route 228, between Cranberry Township and Mars. The Township’s zoning officer turned down an application to operate a dancing school in May. So the Applicant, forgoing the usual avenue of appeal, filed a Complaint in the US District Court, alleging that the denial was an infringement upon the Applicant’s rights under the First Amendment.

No, it wasn’t the kind of dancing school you and I went to when we were twelve. The only freedom of expression issues arising there would have involved whether she said he was cute — and there was no protection, Constitutional or otherwise, from that kind of free speech.

No, it was a different kind of dance studio. It made national news last Thursday. Then the Wall Street Journal Law Blog covered the federal case filing on Friday. Psst! — do you want to hear what I found out about Stephanie Babines? Very quietly, click here.

Now that you have read the WSJ Law Blog account, you may still be wondering what dancing of any kind has to do with the First Amendment. The answer is that the dance is a medium whereby the dancer expresses her sexuality. Moreover, the zoning officer had viewed the Applicant’s sexually explicit website (but only in the line of duty) and had decided to punish her for the content of the webite, which is protected by the First Amendment. Lest you think I am making some of this up, the Complaint states, beginning at paragraph 52:

“52. Defendants’ denial of plaintiff’s application for an occupancy permit for her dance
studio violated plaintiff’s First Amendment rights because defendants’ decision was based on the
expressive content of the dance classes that plaintiff intended to teach and is thus a content-based restriction on plaintiff’s expressive activity unsupported by any compelling governmental interest.
53. Defendants’ denial of an occupancy permit to plaintiff for the operation of her dance
studio because of the content of her website and advertising constitutes retaliation for plaintiff’s
constitutionally protected speech, in violation of plaintiff’s First Amendment free-expression rights.
54. Defendants’ zoning ordinance restricting the locations of “adult businesses” in Adams
Township regulates expressive activity and is overbroad in violation of the First Amendment.
55. Defendants’ zoning ordinance restricting the locations of “adult businesses” in Adams
Township regulates expressive activity and is unconstitutionally vague as applied to plaintiff’s dance studio.”

Shortly after finishing dance class, I enrolled in law school. Maybe you did, too. If you studied Constitutional Law during the early days of the Berger Court, you were probably under the impression that freedom of speech had to do with the expression of ideas. That might even include non-verbal speech, like flag burning or wearing T shirts with in-your-face messages.

So far, so good. But how do we get from flag burning to pole dancing? If some of you who have taken the course more recently can help me, I’d appreciate it. Thanks in advance for helping me catch up on trends in Con Law.

CLT

Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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