April 22, 2011
Footnote of the Day: Topless Dancing, Alcohol, and the First Amendment
"If topless dancing is entitled to First Amendment protection, it would seem to me that the places where it should most appropriately be conducted are places where alcoholic beverages are served. A holding that a state liquor board may prohibit its licensees from allowing such dancing on their premises may therefore be the practical equivalent of a holding that the activity is not protected by the First Amendment."
Footnote 10, in Justice Stevens' dissenting opinion in New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981).
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The "incorporation" of freedom of speech dates to the 1925 Gitlow v. New York case, when the court said, "For present purposes we may and do assume that freedom of speech and of the press -- which are protected by the First Amendment from abridgment by Congress -- are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."
By 1991, this assumption had led the Supreme Court to consider whether an Indiana law requiring dancers to wear pasties and G-strings was a violation of the First Amendment. The justices ruled 5-4 that it was not, applying a complicated four-part test designed to determine if the state's need for the law was compelling enough to justify an infringement on the dancers' right of free speech.
Posted by: Darren Chaker | May 7, 2011 12:22:37 PM