Give Me Fondling or Give Me Death

Until last month, Orlando - home of the Magic Kingdom - had strict regulation of stripping etiquette on the books.

[Orange] County law specifically prohibits "fondling, stroking or rubbing of human genitals or anus." On March 30, however, a federal judge in Orlando struck down that and other portions of the county's adult entertainment code as unconstitutional impediments to free speech. "Some self-touching, even of the genitals or anus — no matter how crude or distasteful — may be 'central to the expressive nature of the dance itself,'" ruled Judge John Antoon II, quoting from a 2005 ruling from a case in Georgia.

Gone too is the provision barring dancers from exposing "any specified anatomical area while simulating any specified sexual activity with any other person at the adult entertainment establishment, including with another worker."
…
"The First Amendment cannot both protect the expressive element of erotic dancing and also restrict and contort it by prohibiting the very movements that contribute to its erotic message," Antoon wrote. "While the public en masse may not approve of such explicit performances, the First Amendment does not turn on generally accepted views of propriety."

That's a giant leap from last year when the code was amended to allow fondling of "female breast." Why any of that was prohibited in the adult entertainment code in the first place is anyone's guess.

Comments

[Mad Max]

Thank God the framers of the Fourteenth Amendment had the foresight to protect the adult entertainment industry against these kinds of repressive laws!

[cliff]

Now society may move forward with the knowledge that the government truly cares about protecting our constitutional rights.

I, for one, welcome our codpiece rubbing, g-string wearing overlords.

[jimmydageek]

[Orange] County law specifically prohibits "fondling, stroking or rubbing of human genitals or anus."

So, does that mean that I can go and rub one out in the middle of downtown Orlando as long as I claim to be performing the art of erotic dancing? That would give a whole new meaning to "O-town".

[LarryA]

Why any of that was prohibited in the adult entertainment code in the first place is anyone's guess.

Because the people who stump for such laws believe that no male person over the age of lactation should imagine, see, hear, smell, taste, or Heaven Forfend touch anything below the neck of any female person they are not married to and trying to impregnate.

[parse]

So, does that mean that I can go and rub one out in the middle of downtown Orlando as long as I claim to be performing the art of erotic dancing? That would give a whole new meaning to "O-town".

Jimmy, if the only thing keeping you from jerking off in public is the fear of prosecution, I'd say travel to Orlando and do your thing.

[crimethink]

I wonder what the Founders would have said if someone told them that one day in America, the First Amendment would be considered to protect a stripper's right to stroke her vagina, but not the right to mention a candidate's name while he was up for election.

[Ben Franklin]

I wonder what the Founders would have said

WOO-HOO!

[VM]

Hey Jimmy! You wanna borrow Noam?

(go away! he's batin!)

[Timothy]

The world is better for this.

[jimmydageek]

VM,

You don't have to send me your Noam, a clone would suffice.

[Russell Hanneken]

It depresses me that, in order to defend erotic dancing in a court of law, people have to pretend it is a way for a dancer to "express" a "message." Apparently it's not enough that it's an activity that doesn't hurt anyone and gives some people pleasure.

As Tom Lehrer once said about "obscenity":

I'm for it. Unfortunately, the civil liberties types who are fighting this issue have to fight it--owing to the nature of the laws--as a matter of freedom of speech, and stifling of free expression, and so on, but we know what's really involved: dirty books are fun. That's all there is to it. But you can't get up in a court and say that, I suppose. It's simply a matter of freedom of pleasure, a right which is not guaranteed by the Constitution, unfortunately.

[NotThatDavid]

Well, unless you look at the ninth amendment, but we all know the Founders had their fingers crossed when they wrote that one.

[M]

Apparently it's not enough that it's an activity that doesn't hurt anyone and gives some people pleasure

The basis for prohibition is that is does hurt anyone, namely those who are thereby tempted away from their marriage vows and/or premarital chastity. Whether or not that is always the case, or the case in enough instances to generalize, and whether or not the threat of statist violence is a desirable way to protect citizens, are seperate questions, which I tend to answer in the negative.

Both for strategic and philosophical reasons I think we are better served by attempting to enter into the premises our opponents hold than to dismiss them as essentially unintelligable or willfully evil.

[Russell Hanneken]

M, I understand that opponents of erotic dancing would offer the kinds of arguments you mentioned. Like you, I don't find those arguments convincing.

My point is that I wish people defending erotic dancing could just say that, instead of advancing a bullshit theory about how stripping is a way for dancers to make a point.

[M]

Russell Hanneken, I read you. My non-lawyer's understanding is that potentially restrictive local communities' standards are most conveniently superceded by the broadest protection, in this case freedom of expression.

As one conservative author put it, Thomas Jefferson may not have had in mind "people copulating with chickens on stage" (I just performed an unsucessful google search with that phrase and now wonder whether it will come back to, uh, bite me), but how better do we combat Kathy Bluenose than to invoke TJ's protection?

[M]

Btw, I first misread the headline as adoption activism, and the first sentence as somehow about censoring Miss Manners.

[Russell Hanneken]

M, I don't have any opinion about what is or is not an effective way to defend stripping in a court of law. I'm just saying it bothers me when people say things that are untrue.

Maybe people have to say things that are untrue (e.g., that erotic dancers are trying to make a statement) in order to protect an (in my opinion) innocent pastime from laws passed by officious busybodies. If so, I think that's sad.

[M]

Russell Hanneken, agreed. I wish I knew a way around that. Philosophical anarchism has been suggested.

And I too would welcome "an effective way to defend stripping in a court of law."

😉

[Lamar]

Russell: What about the message "I've arrived, and I'm going to take your money because I'm hot and naked"? You might think I'm joking, but I'm really not. Who are you to judge what messages are important enough to get First Amendment protection? Even if you think you got it all down on this "message" issue, I don't see how you can deny at all that this is commercial speech.

[Albionite]

I agree it is sad that the 1st Amendment must be invoked for this. Fingering oneself is not speech, it's fingering.

Once prostitution is legalised, this will not be a problem. Every adult has the right to do whatever she or he wants with her/his body, especially in private places.

If "dancers" want to stroke their genitals, touch their buttholes, or whatever, then it should be perfectly OK for me to shout "whore" (that's a 1st Amendment issue), and perfectly OK for them to do so anyway.

[swillfredo pareto]

no male person over the age of lactation

Now that I like. But I am still confused??

it should be perfectly OK for me to shout "whore"

But for God's sake don't shout "nappy headed whore!"

[Russell Hanneken]

Lamar, I really don't think strippers are trying to tell people "I've arrived, and I'm going to take your money because I'm hot and naked." If they were, they could just say that. Instead, I think they're simply trying to take your money by being hot and naked.

Someone observing a stripper might conclude that she has arrived, and that she's going to take someone's money because she's hot and naked. But that doesn't make stripping a form of speech.

You might observe me tying my shoes or doing my taxes, but does that mean I'm trying to tell you I'm tying my shoes or doing my taxes?

I never passed judgment on the importance of anyone's message. My point was that, in the case of stripping, there is no message. An erotic dancer is just trying to do things to titillate her audience and make money.

There's nothing wrong with that. Erotic dancing is harmless and fun. It should be legal. I'm just saying I wish it wasn't necessary to pretend it's speech in order to defend it.

[Goldwater Conservative]

I've never understood strip clubs. A damn coke costs $8.50 and you can't even touch the dancers. Might as well go to pornotube.com and throw money at my laptop.

[gaijin]

I agree it is sad that the 1st Amendment must be invoked for this. Fingering oneself is not speech, it's fingering.

It may not be speech, but it certainly is expression...or maybe it's religion...or peaceable assembly...

[Lamar]

Russell,

(1) Your theory seems to be that all non-verbal communication is, by definition, not a message. Why else would you insist that they "just say" their message? Why should only written or verbal communication be protected?

(2) Your example of me watching you do your taxes is really out there. How could you possibly confuse the scenario where I observe you doing mundane tasks with a person who choreographs a dance routine, then perfects that routine? It's not the same thing.

(3) Why is titillating the audience not a message? All performers want to titillate their audience. Are they all just trying to make a buck, and therefore not protected? Is "trying to make a buck" the standard? the second you try to make a buck, you get no Constitutional protection?

(4) You didn't respond to my assertion that, at a minimum, this is commercial speech.

(5) Honestly, I think your lack of respect for strippers has clouded your judgment.

[daniel k]

Harumph... I say again HARUMPH. Maybe you guys think that watching hot, young, naked, nubile women gyrate about has nothing to do with freedom of speach, the founding fathers, the Federalist Papers (expecially #69)and keeping our constitutional rights, but I try to watch naked dancing girls at least weekley (OK, twice a week... OK, OK daily) - FOR FREEDOM. 😉

[Lincoln]

but I try to watch naked dancing girls at least weekley (OK, twice a week... OK, OK daily) - FOR FREEDOM. 😉

You sir are a true patriot. *salutes*

[Lamar]

daniel k:

By your standard, the ACLU vs. Reno 2 was about viewing naked internet chicks for freedom? I'm sure the Federalist Papers don't mention online porn. I'm sure the founding fathers wouldn't have approved of boobies on display. Why is it so difficult to discuss individual rights (i.e., the right for these girls to make their living, their right to dance as they see fit) without juxtaposing staid George Washington and le porn du jour?

The funny thing is, all this prudish denial gives more credibility to the idea that dancing naked means more than just showing up for work.

[daniel k]

All I can say is:
moderation in the pursuit of jiggling bobbies is no virtue, and extremism in the defense of wiggling bottoms no vice. 😉

[Russell Hanneken]

Lamar,

1. You're right: it is possible for an expressive act to be non-verbal. But I still doubt the intention behind stripping is to convey a message. Not for the average stripper, anyway. Try asking a stripper why she includes a move like touching her anus. I suspect you'll get an answer like, "because that really turns guys on," not "because it makes the point that . . . [whatever]."

2. The point of the taxes example was that "doing X" is not the same thing as "telling people I'm doing X."

3. No, titillating an audience is not a message. It is titillating an audience. I don't know why you would think otherwise. If you think that titillating an audience implies you're trying to tell people you're titillating an audience, see (2).

It may be that not all strippers are "just trying to make a buck." Perhaps some strippers enjoy the sense of power that comes with erotic dancing. Maybe there's some other motive involved--I don't know. I do think money is a motive for most of them, and I doubt that self-expression is a motive for more than a tiny percentage of them.

In any case, I never said people are not protected by the law if they're trying to make a buck. Sometimes they are, sometimes they aren't. I never said they're not protected by the Constitution if they're trying to make a buck. Sometimes they are, sometimes they aren't.

4. Stripping is not commercial speech because it is not speech. I thought that point was clearly implied by what I said.

5. Who said I don't respect strippers? I've met several strippers. Most of them seemed like decent people doing a difficult job.

Lamar, I don't think you're getting my point. I like strippers. I like erotic dancing. I think stripping is a perfectly respectable, legitimate activity that should be protected by the law, even if (sadly) it is not in all cases.

I just don't think the purpose of stripping is to express a message. (Maybe there are exceptions in some cases.) Therefore, I think it's silly to invoke the First Amendment to defend it. Ideally, people should be able to defend it by pointing out it's a harmless activity that involves consenting adults.

Freedom of speech is not the only right people have, you know. We shouldn't have to pretend every peaceful activity is a form of speech in order to defend it.

[Mad Max]

"Maybe people have to say things that are untrue (e.g., that erotic dancers are trying to make a statement) in order to protect an (in my opinion) innocent pastime from laws passed by officious busybodies. If so, I think that's sad."

Strippers are *forced* to perjure themselves in court and claim some First Amendment sanction for their activities! Those horrible Right-Wing Christian Fundamentalist Extremists (TM) certainly have a lot to answer for!

[Albionite]

Mad Max

Not entirely clear on what your point is....

[Lamar]

You say that speech can be non-verbal, but you insist on arguing that there is no speech in dancing because they can "just say it" (see your number 2). You even admit that some dancers are in it for the self-expression (number 3, second paragraph), yet you deny that the self-expression exists (your first post).

Why is "turning guys on" not a message? Isn't "turning guys on" the point of 3/4 of all car commercials? They're protected. Turning guys on is the whole point of Larry Flynt and Hustler. Turning guys on, making money from girlbush, and yes, even anal touching. What's the diff? Does Larry Flynt tell you he's going to turn you on, or does he publish the hot beav and actually turn you on?

How is a girl dancing any different than an advertisement? Both are selling you a product or service. Are you saying that advertisements are NOT commercial speech? SCOTUS would disagree with you. It's almost like showing you a picture of a Nissan Altima isn't protected, but saying how awesome an Altima is will be protected.

How about no more car commercials with outrageous driving sequences? Why do protect that phony garbage? Shouldn't somebody step in and tell them that they should just say how good their car is? Isn't controlling the amount of impact created by speech the same as controlling the speech?

By the way, I don't like nude dancing.

[Albionite]

FWIW, I insist that "speech" means "speech."

Not "message". Not "expression". That's why they wrote "speech" as opposed to "message" and "expression."

[Lamar]

So people who can write, but not speak, are NOT entitled to First Amendment protection? Get out of here, jackass.

[Al Sharpton]

make a buck

Careful there.

[Thomas Jefferson]

Not entirely clear on what your point is

Yeah, could you repeat it with, say, a chicken?

[Kwix]

Therefore, I think it's silly to invoke the First Amendment to defend it.

I disagree with you here, but on a different point. Say you are correct that nude-gyrational movement isn't speech, the first amendment has other parts, this one in particular:

or abridging ... the right of the people peaceably to assemble

IOW, if it ain't inciting riots or causing any harm to anyone, then it should be legal. You are right though, you shouldn't have to rely on "free speech" to legally prop up what should be a no-brainer of a rights case. Show me where nude dancing forces others to give up their rights and I might change my mind.

[Mad Max]

"Not entirely clear on what your point is...."

Let me put it this way:

The federal courts tell us that the Fourteenth Amendment (incorporating the First, which originally applied only to Congress) limits the power of state and local governments to regulate this sort of exhibitionism. The Fourteenth Amendment (particularly Section 1, the relevant portion for purposes of this discussion) was drawn up by the Reconstruction-era Congress to deal with legal persecution of the newly-freed slaves and Southern Unionists. Now we're told (by federal judges) that this amendment also curtailed the traditional power of the state and local governments when it comes to issues traditionally conceded to belong to the police power. How did this happen?

[Mad Max]

"Yeah, could you repeat it with, say, a chicken?"

buck buck ba-caw. Are you happy now?

[SuperMike]

Naked expression is why the islamists hate us. The WTC suicide nuts even went to a strip club to work their rage into a froth. We must protect it at all costs.

[Russell Hanneken]

Lamar,

You are correct to say that not all expression is verbal. I conceded that. I was wrong to imply otherwise.

I also concede it is possible some erotic dancers are trying to convey a message, or at least convey an artistic vision. (Maybe Cirque du Soleil's "Zumanity" show would qualify? I don't know; I haven't seen it.) I was wrong if I implied otherwise.

In cases when an erotic dancer actually is trying to express something, perhaps it would make sense to defend her activities by advancing an argument based on freedom of expression.

However, I still think that, in the overwhelming majority of cases, strippers aren't expressing anything. If you don't believe me, go to a local strip club. Talk to some strippers.

In the typical case, therefore, I think a freedom-of-expression defense misses the mark, even if it's legally effective.

Turning guys on is not a message. A message is a statement that one wishes someone else to understand, and that one makes an effort to convey.

Turning guys on is an action. In form it is similar to conveying a message--one person acts, another person observes the act and has an internal reaction to it.

But when you convey a message, the other person understands the statement you meant to convey. When you turn someone on, the other person has a certain feeling, but no propositional content is conveyed. No propositional content is even intended.

You ask if I think car commercials are speech. I would say they are in some cases, to some extent. Even when they're not literally speech, they are sometimes expressive in the sense that their purpose is to convey a vision of what it would be like to own the car being advertised. But it may be that some car commercials shouldn't be considered speech. Perhaps, as you say, the Supreme Court would disagree. So be it.

But again, the fact that something isn't speech doesn't imply it should be illegal. We should have the freedom to do lots of things that aren't speech, or even expressive in any sense.

I'm just bothered that defenders of erotic dancing sometimes torture the natural meaning of words in order to make their case.

The blog post above quotes a judge referring to "the expressive nature of the dance" and a stripper's "erotic message." This is in the context of a dancer touching her genitals and anus. To me, that's an obviously silly way to frame the issue.

[Albionite]

Lamar,

Writing is also covered under the 1ST Amendment--that thing about the press.

Dancing is neither, and please watch you language.

[Russell Hanneken]

Upon further reflection, I think I would explain the difference between "expression" and "turning guys on" this way:

In an act of expression, you have some mental content, and you're trying to evoke the same mental content in another person--or at least you're trying to make him understand that you have that mental content.

In an act of turning someone on, the point is not to convey some mental content you have. You are trying to evoke a certain reaction in the other person, but you are not trying to make them understand something in your own mind.

[Lamar]

"Writing is also covered under the 1ST Amendment--that thing about the press."

What if I handwrite my expression without the aid of a press? Or even if you accept the reference of "press" to professional journalists, I'm no professional. Are my posts protected?

Russell: we'll have to agree to disagree. I think you're definition of speech is too subjective, but c'est la vie.

[Stevo Darkly]

I've never understood strip clubs. A damn coke costs $8.50 and you can't even touch the dancers.

To my substantial surprise the first time I was dragged to a strip club in 2005, in some jurisdictions a great deal of touching is allowed and routine, within the context of a table dance and especially a lap dance.

[crimethink]

Russel H.,

I think the difficulty would lie in crafting a law that restricts turning guys on, but doesn't restrict expression of ideas. There could be a lot of overlap between the two, and if the difference lays only in the mind of the stripper, it's going to be hard to tease out in practice.

[Stevo Darkly]

it's going to be hard to tease out in practice.

Eight whacks with the Bad Pun Stick.

[biologist]

Stevo, if you ever get down to Florida, I recommend Scarlett's Cabaret, on the south end of Fort Lauderdale/ north end of Miami-Dade county

[* gasp *]

I recommend Scarlett's Cabaret

Is someone here, uh, performing a strip-search?

[The Wine Commonsewer]

Actually, all that stuff should be legal but it is absurd, in fact, it is the height of absurdity to believe that somehow touching your hot little, well, you know, while dancing (for money, btw) in a tittie bar is speech.

It isn't the state's business what goes on in a private business establishment. Whether you want to pretend it's speech or not.

As far as that goes, why isn't it speech when you pay some hot little honey to do you real fine like? She's speaking and your saying, uh, yeah, baby, that feels real good. Sounds like speech to me. Oh, I guess it's not free. Maybe that's the rub. Well, the rub feels okay too.

[Anonymous]

I love it when you talk dirty.

[Lamar]

"As far as that goes, why isn't it speech when you pay some hot little honey to do you real fine like?"

You mean the difference between simulated sex acts that have been viewed as expression for years or are you talking about actually having sex? My take: it's funny how prude everybody is that they can't make an argument without resorting to some form of "awww, c'mon, they're naked." The difference between artistic dance and boobie dance apparently depends on the velocity of one's trouser rising.

[John in Nashville]

Let's not forget the right to bare arms.