Nude Dancers' Expression Should Be Guarded by State Constitution

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Byline: GUEST VIEWPOINT By Ofer Raban

The Oregon Legislature once again is preparing to consider an amendment to the Oregon Constitution's free speech provision that would make it easier to regulate nude dancing establishments.

The proposed amendment seeks to overrule Oregon Supreme Court precedents providing more protection to this form of expression than equivalent U.S. Supreme Court decisions. But the federal decisions are poorly reasoned, while the Oregon Court got things right.

Both the U.S. Supreme Court and the Oregon Supreme Court agree that nude dancing is a form of expression protected by constitutional free speech provisions. Also, both courts agree that government regulations that restrict protected expression by reference to its content are presumptively unconstitutional.

As the U.S. Supreme Court once put it, freedom of speech means, "above all elsea... that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."

But in a series of intensely divided and poorly reasoned opinions, the U.S. Supreme Court upheld the constitutionality of a number of regulations targeting nude dancing. The court conceded that these regulations restricted protected expression by reference to its content. However, it then accepted the government's claim that the regulations did not seek to suppress expression, but instead were meant to address prostitution and other related crimes that tended to accompany nude dancing establishments.

In some of these cases, the court did not even require the government to support its allegations factually, relying instead on the allegations' "reasonableness." The court then concluded that since these regulations were not aimed at expression but at its related effects, they were perfectly constitutional.

This distinction, between laws targeting nude dancing because of its sexual content and laws targeting nude dancing because of its related effects, was rejected by the Oregon Supreme Court - and for a good reason. …