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You Can't Strip Dancers of the Right to Bare All

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Strippers have constitutional rights too -- or at least that’s the claim of three New Orleans women challenging a Louisiana law that requires erotic dancers to be 21 to expose their breasts or buttocks. It may sound absurd, but the legal argument is pretty powerful. The law facially discriminates on the basis of sex, and arguably infringes on that classic First Amendment right to express yourself by dancing without clothes.

According to its proponents, the Louisiana law, signed in June, was aimed at reducing sex trafficking by preventing women ages 18 to 21 from stripping. Presumably the idea is that women younger than 21 are especially vulnerable to trafficking. But the chain of logic isn’t all that clear, because trafficking doesn’t necessarily stop at 21. One state senator said that if you have to be 21 to drink in a Louisiana strip club, you should have to be 21 to take off your clothes. That doesn’t really follow, either.

Another state senator, who said the law was an instance of unnecessary overregulation, proposed a parodic alternative that would have required all dancers to be between 21 and 28 years old, weighing less than 160 pounds. The joke is offensive and unfunny, but the critic did have a point: The Louisiana law doesn’t have a very convincing rational purpose.

The due process clause requires that all laws have some rational basis. As a constitutional matter, however, it’s usually sufficient for that rational basis to be tenuous. The Louisiana law’s stated goal of combating trafficking is probably rational enough to survive that sort of objection.

But the three Jane Doe plaintiffs who are challenging the law, including a Louisiana State University student who dances part time to put herself through school, have two better constitutional arguments.

The easier claim is that the state law discriminates on the basis of sex. The law regulates “entertainers whose breasts or buttocks are exposed to view.” That formulation treats male and female strippers the same for bottomless dancing -- but it treats men and women differently with respect to topless dancing. Thus, a man age 18 to 21 could dance topless, but a woman of the same age could not.

Under U.S. Supreme Court precedent, a law that on its face treats men and women differently cannot rest on a stereotypical distinction between the sexes. The idea that women 18 to 21 are more vulnerable than men to trafficking would count as stereotypical under the precedent, even if it was backed by some legislative evidence, which the Louisiana law isn’t. The dancers will therefore likely win on this claim.

But, of course, the state could easily solve the sex discrimination problem, either by extending the law to topless men or by limiting it to bottomless dancers of both sexes.

That’s why the dancers’ second, more uncertain claim is so important. The women say that the law violates the right to self-expression.

The Supreme Court has indeed held that nude dancing deserves First Amendment protection. The 2000 decision that is the last word on the subject held that a municipality could ban nude dancing not out of disapproval of the expressive message of the dance, but only to regulate the “secondary effects” of having strip clubs in certain geographical areas.

The Louisiana law has nothing to do with secondary effects. Thus, strange as it may sound, the dancers have a plausible First Amendment claim.

The state’s best counterargument would be that the law isn’t targeting the dancers’ free speech per se, but their participation in a trade that’s either a form of sex work or likely to lead to sex work. And the Supreme Court has never held that sex work is a constitutional right, even though there’s a fundamental due process right to choose your sexual partner.

It’s worth noting that the state doesn’t ban all nude dancing. In that sense, it isn’t targeting speech, just speech by those ages 18 to 21.

Until recently, the state might well have had the better of this argument. But since the 2015 decision in Reed v. Town of Gilbert, the dancers should probably win. That decision, which is already having a major impact in the federal courts, insisted that any regulation of content must be subjected to the highest degree of judicial scrutiny and permitted only if the government has a compelling interest and has narrowly tailored its law to serve that interest.

Technically, the Louisiana law regulates content -- even though it applies only to dancers 18 to 21. It can’t survive strict scrutiny. Expect the strippers to get their day in court -- and to leave the courthouse dancing in victory.

  1. Conceivably the state could say that it will interpret “breasts” to apply to men’s bodies as well, but that interpretation seems pretty unlikely in Louisiana.

  2. The case, City of Erie v. Pap’s A.M., featured a famous flip by Justice David Souter. In a 1991 case, Souter had provided the deciding vote for the position that the secondary effects of the new dancing establishments could be presumed. In the 2000 case, he wrote that the municipality must prove the secondary effects. His explanation of his flip is a classic:

    I should have demanded the evidence then, too, and my mistake calls to mind Justice Jackson’s foolproof explanation of a lapse of his own, when he quoted Samuel Johnson, “Ignorance, sir, ignorance.” I may not be less ignorant of nude dancing than I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted. I hope it is enlightenment on my part, and acceptable even if a little late.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net