An adult business in Louisiana. Source: Facebook.

Last month, the federal Court of Appeals for the Fifth Circuit invalidated a Louisiana statute prohibiting nude erotic dancing by 18 to 21-year-old women, finding that the law was too vague and thus violated the First Amendment.  The law was passed by the Louisiana legislature in 2016, and applied to locations that serve alcoholic beverages in connection with nude dancing.  Erotic dancers were previously required to be at least 18 years of age, and state law—both before and after the 2016 law—did not permit total nudity.

The court addressed the law as a content neutral regulation of expressive conduct, in line with Fifth Circuit precedent requiring adult business regulations to be analyzed under intermediate scrutiny.  The court analyzed the law under the four-part standard for determining the constitutionality of regulations of expressive conduct under United States v. O’Brien.  The court reversed the district court’s conclusion that the law was not narrowly tailored, on the grounds that Louisiana state courts had limited the act’s application beyond its plainly legitimate sweep.  Thus, the law was tailored to the state’s interest in reducing negative secondary effects associated with adult entertainment establishments.  The court went on, however, to find that the law was unconstitutionally vague.  Specifically, the court found that the law in question, which prohibited exposure “to view” of the dancers’ breasts and buttocks, did not clearly prohibit specific conduct.  On these grounds, the court invalidated the statute.

While this case does not deal with local regulations (which are generally the subject of our blog), it provides further direction to local governments addressing adult entertainment businesses.  Specifically, local governments need to clearly identify the type of conduct that is permissible in adult entertainment establishments, and should not rely on state laws that might not be sufficiently specific in that regard.

Doe I v. Landry, 905 F.3d 290 (5th Cir. 2018).

A nudist political protest in San Francisco. Source: Change.org.

This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Is a birthday suit like burning a draft card?  Last week, the Ninth Circuit Court of Appeals took on a First Amendment challenge to San Francisco’s public nudity ordinance, which prohibits an individual from exposing “his or her genitals, perineum, or anal region on any public street, sidewalk, street median, parklet, plaza, or public right-of-way . . . or in any transit vehicle, station, platform, or stop of any government operated transit system in the City and County of San Francisco.”  “Body freedom advocates” Oxane “Gypsy” Taub and George Davis brought an action challenging the City’s enforcement of the ordinance, alleging that it unconstitutionally prohibited expressive nudity at a political rally. The case came before the Ninth Circuit following dismissal by the United States District Court for the Northern District of California. Continue Reading Naked and Apparently Unafraid in San Francisco: Ninth Circuit Upholds Public Nudity Ban