Commentary 8/7: Nude Dancing and the First Amendment

Q : Should exotic dancers be subject to arrest for touching patrons? The protections afforded by the First Amendment have been invoked for all kinds of causes and by all types and shapes of individuals. The list of individuals who have claimed the shield of freedom afforded by the First Amendment is long and distinguished. […]

Do strip club distance laws keep us safe?

By David H. Landon

Q: Should exotic dancers be subject to arrest for touching patrons?

The protections afforded by the First Amendment have been invoked for all kinds of causes and by all types and shapes of individuals. The list of individuals who have claimed the shield of freedom afforded by the First Amendment is long and distinguished. There are instances where the group or individual claiming a right under the First Amendment is so far out of the mainstream that their very existence is upsetting to polite society. That makes them no less entitled to the protection of the First Amendment. 

Let’s not presume that the First Amendment is designed to only protect speech. The First Amendment protects much more than the spoken or printed word. It also protects various forms of symbolic speech and expressive conduct. The Supreme Court has ruled that even nude performance dancing is a form of expression that when restricted, requires First Amendment review. And that brings us to the issue at hand.

Stormy Daniels, an adult entertainment performer who became famous from an alleged affair with Donald Trump during his reality TV show days, performed this past weekend without incident at Washington Township’s Diamonds Cabaret. Her appearance had been given additional scrutiny because of her arrest earlier this month at another adult entertainment venue in Columbus, Ohio because she was alleged to have touched a customer in a sexually suggestive manner.  The Columbus City Prosecutor, however, chose not to pursue criminal charges against Daniels having reached the conclusion shared by many legal scholars that the law governing Ms. Daniels erotic dance routine is constitutionally vague.

The law in question is Ohio Senate Bill 16, which was adopted into law in 2007. Also known as the Community Defense Act, the law was an effort to eliminate adult-oriented entertainment businesses from Ohio communities. Among other confusing parts of the statute, the wording in the law states that performers must be “regularly employed” by the establishment in question to be subject to the law. Appearing as a guest performer, the City Prosecutor decided that law didn’t apply to Daniels.

While Senate Bill 16 deals with prohibitions enforced by law enforcement, Administrative Rule 52 is used by the Ohio Division of Liquor Control to regulate adult establishments. In sum, it states that any business establishment that has a license to sell alcohol cannot permit full nudity by their dancers and no touching of patrons is permitted. This law is often used to fine or shut down adult-oriented businesses.

Though Diamonds is a private club and has no liquor license, the line in the sand regarding patrons and touching essentially remains the same. What type of exotic dance is protected by the First Amendment?

Those who support the right of a nude dancer to touch patrons as part of her act argue free expression of the exotic is protected by the First Amendment. They point out nude dancing, when performed for the purpose of expressing or implying eroticism to their audience qualifies as a form of expressive conduct (speech). Historically, laws now on the books throughout the United States had been created by lawmakers for the purpose of “protecting” viewing patrons from the alleged harmful message nude dancing communicates. These laws are viewed by nude-dancing-as-expression supporters as an impermissible reason to censor expression and violates free speech.

Those who oppose allowing exotic dancers to include touching patrons in an erotic or implied-erotic fashion argue the state has the right to regulate it because it’s “harmful.” Many on this opposed side claim the harmful behavior is fostered by an industry they claim allegedly targets “vulnerable” women and allegedly contributes to sex trafficking, prostitution, and drug abuse more than other industries (such as non-adult-themed entertainment venues, nightclubs, casino’s etc.) despite published studies to the contrary.   

Q: Should exotic dancers be subject to arrest for touching patrons?

A: Nay – Tempest in a D-Cup

A (breast) touching moment in Ohio history

By Marla Boone

Thomas Babington Macauley said, “The Puritans hated bear baiting, not because it gave pain to the bear but because it gave pleasure to the spectators.”

That misguided, self-flagellating, holier-than-thou Puritanical mind-set is alive and well in Columbus, Ohio and we have the Ohio Christian Coalition to thank for it. The OCC has a long history of lobbying against reproductive and gay rights legislation, perfectly illustrating musician Moby’s famous quote: “The Christian Right is neither.”

The group, along with Citizens for Community Values, sponsored Ohio’s Community Defense Act. Just about every word in that sentence makes me want to, not to put too fine a point on it, throw up. Christian Coalition…really? Because Christianity is the only belief that counts? Citizens for Community Values…really? Whose values? What arrogance to presume they speak for us all. Community Defense Act…really? Are the strippers toting Uzis these days? (Where would they stow the spare clip?) But because no lawmaker who ever wanted to get re-elected in this state would dare vote against such a high-minded-sounding thing, it was made into law in 2007. Although toned down from its original version, which prohibited dancers in adult clubs from coming within six feet of patrons, the adopted rendering, Ohio Senate Bill 16, does prohibit “regularly employed” dancers from touching patrons.

SB 16 mandates a dancer can be charged individually but the club owner must defend the dancer. In direct contrast to this is Rule 52, which states that any business establishment with a liquor license cannot permit full nudity. Under this law, the owner of the establishment can be fined and have their liquor license suspended but the dancers themselves cannot be charged.

On July 12 Stormy Daniels, whose fifteen minutes of fame began ticking away when she claimed to have received hush money from Donald Trump’s lawyer to keep quiet about an alleged tryst in 2006, was arrested at a Columbus “gentleman’s club” (oh, the irony) for allegedly allowing some patrons to touch her breasts. Three of those patrons are undercover Columbus law enforcement officers. There was at least one additional police officer there who didn’t try to cop a feel, no pun intended. Four undercover police officers being in an otherwise-obscure strip club prompted me to do some math. There are 1,848 uniformed officers on the Columbus, Ohio police force. Given three eight-hour shifts per day, this allows for 616 officers to be on duty at any one time. There are twenty precincts in Columbus, so there is an average of thirty-one police officers per shift per precinct. At least four of them—one out of every eight officers in the precinct—were in that club. The motto of the Columbus Police Department is “Professionalism, Respect, Integrity, Discipline, Enthusiasm.” I have no first-hand knowledge of their success with the first four ideals but they have certainly nailed the enthusiasm part.

I am not knocking law enforcement officers here. They work awful hours in dangerous situations, dealing with the detritus of society, plus the occasional fleetingly famous stripper. Such a large police presence, however, strongly suggests that Ms. Daniels was targeted. Supporting this suspicion is the evidence that one of the officers involved researched Ms. Daniels before her performance date. Specific to the research were photos of Ms. Daniels and a map pinpointing the location of the club. Another of the officers who took part in the arrest has a Facebook account that includes posts such as “Cops for Trump Pence.” What is especially damning is the fact that since its inception in 2007, this instance is the very first time SB 16 has been cited in Franklin County.

In an amazing display of common sense, the city prosecutor declined to press charges. Obviously, he knows a lousy law when he sees one. This statute is vague, gaping open to capacious legal interpretation, implemented with no consistency, and allows the police to be subjective and selective in imposing it. This type of authoritarian interference at its worst is exactly what Frank Zappa had in mind when he observed, “The United States is a nation of laws, badly written and randomly enforced.”

Saying this puts me uncomfortably close to the camp of those who spot conspiracies everywhere, but this is another example of the government trying to control what women can and cannot do with their bodies. Many of the laws, according to the Huffington Post, are passed seemingly to protect the dancers. But the dancers themselves see it far differently. Codi, a co-founder of We Are Dancers USA had this to say, “Ambiguous interpretation of oddly specific legislation disproportionately impacts the dancer rather than the establishment, the club management, or the customer who is breaking the same law. The rise in strip club raids goes to show that laws made to regulate our legal industry are not designed to protect us from mistreatment, does not insure safety in the workplace, and only forces us into the justice system as criminals.”

The Columbus Police Department also encompasses thirty-one motorcycles, five boats, five helicopters, ten dogs, ten horses, and apparently fourteen horses’ butts.

A: Nay – Defending the community?

Another example of frivolous laws

By Patrick Bittner

Throughout the history of the United States, few things have been more constant than the dwindling influence of outdated laws. Everything from it being illegal to carry an ice cream cone in your back pocket to buying alcohol on Sundays has slowly but steadily been replaced by more modern and more sensible legislation. According to a Dayton Daily News article from 2016, a few weird or outdated laws that are still on the books in the great state of Ohio include women being prohibited from wearing patent leather shoes in public, being illegal to get a fish drunk, more than five women living in one house being prohibited, fishing for whales on Sunday being outlawed, and the Ohio driver’s education manual makes it a requirement to honk the horn whenever passing another car.

While these all seem so trivial and just plain unnecessary, the law that was recently used to arrest adult entertainment star Stormy Daniels did not seem so at the time of her arrest, yet it is perhaps the most ridiculous and dated law on the books in our state capital. The law, commonly known as the Community Defense Act, is completely outdated even though it was passed in 2007. It relies more on biblical ideology than actual enforceable consequences for actual community harm. In fact, the idea behind the law is so ridiculous it is hard to believe that it is even currently enforceable, let alone a mere decade old.

Perhaps the first thing to realize about this situation is that it is not universally enforced in practice. Law enforcement uses it sporadically and un-uniformly to punish working individuals. The Community Defense Act punishes the dancer individually with a crime while the owner of the club must defend the actions in order to keep their liquor license and operating permits. The police could charge every dancer in a club one night and charge no one the next. There are also no specifics stating what techniques the police may use to coerce an incident into happening, leaving the door wide open for unethical situations. Above all else, the point of the law is to treat every person in the land equally and this law absolutely does not achieve that end.

Consent plays a large role here too, on both the part of the dancer and the patron. While the word consent is usually associated with more overtly sexual situations, the act of a dancer touching a patron easily falls under the wing of consent. The instant that a patron walks into an exotic dance club, a level of consent is established. The very nature of being inside one of these establishments creates a pact between the patron and the dancer, with both experiencing a level of protection from the situation. And while a dancer and a patron do not enter into a written contract, our society and the micro-society that exists within the club provide a clear level of unspoken understanding. This is reinforced and validated by the very fact that a person must be over the age of 18 to even enter an exotic dance club, showing that such a decision is clearly that of an adult. A law is only needed in a situation where the implicit consent is broken by either the dancer or the patron, not in situations where a transaction is occurring between the two.

Furthermore, the idea that such an overtly self-aggrandizing law should be on the books is absurd. Our society should be more concerned with funding schools, making sure our drinking water is safe, and supporting single working mothers than it is with enforcing a “Christian” law on adult dancers. The Community Defense Act is a sham, placing falsely high-minded ideals above the reality of the situation, a reality where two adults are engaging in a consensual transaction. Was Ms. Daniels targeted because of her national fame? Most likely. But were two other women, working for whatever reason, harmed by this ridiculous law? Undoubtedly yes. It is time, especially in the current political climate, to reevaluate what we want to emphasize and promote as a culture. Should we waste time passing and enforcing in an extremely desultory manner, laws that have negligible moral benefit and massive problems, or should we actually realize that a dancer touching a patron is not the end of the world and should be considered a consenting act between two adults? The answer is clear and the provisions of the Community Defense Act should be removed from the books to make way for effective and useful legislation.

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David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at

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