Earlier this week, Stormy Daniels, the adult film star who says she took hush money to stay quiet about an alleged 2006 affair with Donald Trump, was arrested for violating an Ohio statute that prohibits a stripper from allowing patrons to touch her if she is nude or semi-nude. The statute used against her is an example of how free expression can fall victim to zealous moralizers—and how almost any law aimed at free expression can be used to punish a political opponent.
These regulations—typically known as "no touch" or "proximity" rules—are common, and throughout their history they have been used to make end-runs around the First Amendment.
There's no escaping the conclusion that erotic dancing is a form of expression protected by the Bill of Rights. As Judge Richard Posner wrote in the 1990 case, Miller v. City of South Bend, any notion that nude dancing is not expression is "indefensible and a threat to artistic freedom."
He articulated his reasoning as follows:
The goal of the striptease—a goal to which the dancing is indispensable—is to enforce the association: to make plain that the performer is not removing her clothes because she is about to take a bath or change into another set of clothes or undergo a medical examination; to insinuate that she is removing them because she is preparing for, thinking about, and desiring sex. The dance ends when the preparations are complete. The sequel is left to the viewer's imagination. This is the 'tease' in 'striptease.'
In Schad v. Borough of Mount Ephraim (1981), the Supreme Court made it clear that totally banning nude entertainment violates the First Amendment.
As the law became more permissive, those who wanted to restrict strip shows were forced to get more creative. After all, if a would-be censor doesn't want a strip club in his town, and the First Amendment protects it, what is he to do?
Enter the "adverse secondary effects" doctrine from Renton v. Playtime Theatres (1986), in which the Supreme Court said that the government can't restrict adult businesses because the government doesn't like the expression therein—but it can restrict them, using zoning regulations, because of harmful effects the businesses may cause.
These "secondary effects" are usually claims of increased crime or lower property values. Although, in reality, these secondary effects rarely actually exist outside of the imaginations of those who want to regulate the businesses.
The jurisprudence surrounding nude dancing and other adult businesses gets more and more convoluted as municipalities and courts have done whatever they could to avoid the conclusion that they want to stifle expressive activity because they don't like sexual expression.
By the early 2000's, adult entertainment businesses that survived the zoning wars got hit with the "proximity" rules. The expressed reason for these regulations was to discourage prostitution. However, anyone who has spent time in a strip club knows that you must get somewhat close to the dancer in order to tip them. Try putting a dollar in a g-string without some incidental contact. Further, some regulations went so far as to prohibit patrons from even getting near a stripper.
If nude dancing is expressive activity, then proximity or even contact is as well—and these regulations stifle First Amendment-protected expression.
If you're skeptical, think of how we communicate. Words are clearly expressive, but think of how imperfect of a medium the written word is. Imagine wrapping your arms around someone, burying your nose into their hair and pulling your breath all the way in. Words can't summarize the communication in that small act, yet it expresses more thoughts and feelings and emotions than a shelf of encyclopedias.
There are a number of dances that require proximity—and not just lap dances: Think of a hula dance in which the dancer places a lei around the spectator's neck. Unfortunately, courts have been hostile to this notion, and almost universally uphold proximity and no-touch rules.
The one exception is the 2005 case of City of Nyssa v. Dufloth. In that case, the city of Nyssa, Oregon, imposed a "four foot rule," which led to the arrest of a dancer for merely shaking her hair in a patron's face. Clearly, that expresses something that can't be expressed from four feet away. The Oregon Supreme Court held that free expression means even "the kinds of expression that a majority of citizens in many communities would dislike—profanity, blasphemy, pornography—and even to physical acts, such as nude dancing or other explicit sexual conduct, that have an expressive component."
Unfortunately, the vast majority of other courts have not followed this rationale. Most cases wind up as convoluted attempts to escape the logically inescapable notion that proximity and touch are expressive.
Enter the Stormy arrest. Daniels was arrested under one of these laws after an extensive sting operation. Why did the State of Ohio devote a team of police officers and hours of taxpayer-funded overtime to an investigation, raid, and arrest of a woman for the grave crime of touching another person while semi-nude?
Daniels has her fans and her detractors. (I happen to be the latter, as I think that if you take "hush money," you should "hush.") Whatever you think of her, there is no question that she is an outspoken political activist. And, it seems that she was targeted, in particular, due to her political activism. Otherwise, why was there a massive sting operation involving multiple vice detectives on that particular night, a tour Daniels had advertised well in advance? It sure wasn't because the City of Columbus was under siege by a rash of touchy strippers.
And therein lies the deeper evil in any and all laws aimed at free expression. When you give law enforcement a tool that can be used to target someone who has unpopular views, they will use it. So, not only was the expression demonstrated by the nude dancing suppressed, but the tool of suppression may have been used to punish someone for their political activism.
The case against Stormy was immediately dropped—not because enforcement of it would be unconstitutional (although, I think it would be), and not because it was a pretty blatant targeting of someone for her outspoken activism, but because the statute has a strange quirk wherein it does not apply to performers who do not "regularly appear" at the particular strip club.
Nevertheless, the damage is done. The law on the books restricts free expression—and now that there has been a high profile arrest, the chilling effect will be palpable. Further, whether Daniels was targeted for political reasons or not, it certainly appears that way. Thus, any other entertainer who might stick their neck out has been warned: The Ohio vice squad will be watching you.