LAT–Court Upholds La Habra’s Ban Against Lap Dancing
In a decision that La Habra officials believe could encourage other cities, a federal appeals court Wednesday upheld a city ordinance that effectively bans lap dancing by requiring exotic performers to stay two feet from their customers.
I’m not sure which is dumber, the ordinance or the defense of it.
The ordinance “unfairly impedes on [a dancer's] right to expression and speech,” attorney Scott Wellman argued last year. The reason La Habra enforces such strict ordinances against adult clubs, Wellman said, is that it doesn’t want them in the city, and officials know the clubs can’t survive without lap dances.
Congress shall make no law abridging the amount of titties in my face? Probably fair to say the Framer’s didn’t envision their protection of speech to encompass prostitution and its various offshoots–of which lap dancing surely qualifies.
While prostitution may well have been legal at the time–or not strongly regulated (the historic literature is replete with whores and their clients–esp. during wartime)–it’s hard to view that activity or anything related to it as being of the sort of “speech” entitled to protection under the First Amendment.
As an aside, I maintain that conduct is not speech. If Chesty Dakota wants to shake her bewbies and give a dissertation on the Magna Carta, that dissertation should be protected. The bewbie shaking need not be. Once you extend First Amendment protections to conduct, then you run into the whole hornet’s nest of whether the conduct is expressive and if so, to what extent regulations are reasonable, etc etc. And once you’ve established that conduct is, in some cases, protected, then the legislature’s role is drastically reduced in being able to proscribe certain conduct since it will invariably be subject to a challenge on 1A grounds. Result is you have 9 crusty old farts on a court (3 if you’re only at the appellate level) subjectively deciding what conduct is sufficiently expressive and what is not.
A uniform rule that limits 1A protections to speech/press and other expressly (as opposed to expressive) communicative activities doesn’t run into such subjective problems. But hey, I’m not a Supreme Court Justice…yet. *mwhahaha*
(cross posted to LegalXXX)