suggesting that video games fall in a “gray area” and that government has a greater scope for regulation in this area which may be outside the boundaries of the First Amendment
How later courts described this case
- suggesting that video games fall in a “gray area” and that government has a greater scope for regulation in this area which may be outside the boundaries of the First Amendment
- holding that nude dancing is protected speech
- “A decision saying that a statute does not apply to protected expression recognizes the supremacy of the Constitution over state law; to acknowledge a limit the Constitution imposes on legislation is not to abandon the generality of the law.”
- outlining, inter alia, long history of erotic and nude dancing and explaining why it must be deemed expressive conduct
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
concurring:
I concur in Judge Flaum’s excellent opinion for the court. He has effectively mar-shalled the Supreme Court and other authority that points in the direction of constitutional protection for nude dancing qua entertainment. That authority compels a result that is correct in this case.
I do, however, have concerns that I shall briefly note. Despite impressive displays of scholarly analysis and broad-ranging erudition on all sides, the need to invoke the First Amendment here strikes me as a bit trivializing and, perhaps, unworthy. The application of the Amendment to these facts is correct as a matter of law. I believe we of the majority are doing what the law commands, but the high purposes of the Amendment seem, in these circumstances, in some danger of being lost. 1
It seems to me beyond doubt that a barroom striptease is “expressive.” Even if relatively restrained, as are the videos in evidence here, a striptease sends an unadorned message to a male audience. It is a message of temptation and allurement coupled with coy hints at satisfaction. In a real barroom, messages would probably also flow in the opposite direction, in the form of encouraging comments to the performer from the patrons. 2 These responses speak strongly to the fact that a message is being sent and received. It is also clear that the message of the striptease is not a subject that the Founding Fathers had in mind in drafting the First Amendment. 3 That fact is certainly not disposi-tive, nor perhaps even probative, but it suggests a need for caution in making the Amendment do service in situations as improbable as this one seems to me.
.I hasten to add, however, that I do not think it appropriate to make fine distinctions between the favored entertainments of "Joe Sixpack” and those of "Mrs. Gotrocks." As the majority notes, the Free Speech Clause, by protecting the freedom of expression, necessarily leaves matters of expression and style to the individual.
. E.g., "Take it off; take it all off!”
. No doubt, however, such messages — sent according to the style of the day — were known to the Framers.