Model
Mija
Posts: 37
Milwaukee, Wisconsin, US
Coming from an artistic background, ideally I would like to think that "erotic" is an artistic image, conveying, edgy sensuality. With this in mind, I would really like to expand my port more in this direction (as well as others). HOWEVER - sometimes I don't think my definition of "erotic" fits what everyone else thinks. Photographers: How do you define "erotic"?
Photographer
Mark Brummitt
Posts: 40527
Clarkston, Michigan, US
I don't, but I'll know it when I see it.
Photographer
R Michael Walker
Posts: 11987
Costa Mesa, California, US
Sexually oriented imagery that stops just short of porn by having some small redeeming element beyond titalation.
Photographer
Stephen Dawson
Posts: 29259
Toronto, Ontario, Canada
Something is erotic if its intent is to arouse sexual desire.
Photographer
BTHPhoto
Posts: 6985
Fairbanks, Alaska, US
Porn gives your body a hardon. Erotica gives your brain a hardon. Unfortunately, the majority of the population can't tell the difference.
Photographer
Mike Kelcher
Posts: 13322
Minneapolis, Minnesota, US
Mija, I can solve all your problems. Call me, we'll shoot. If you tell me you lost my number, that's OK, people tell me that all the time. I know I have a face that'd be great on the radio. I also know I should be a photographer, since then the camera covers half of my ugliness. OK, enufff about me, let's talk erotic. Some people consider erotic as something that "arouses them". One of the dictionary descriptions is "Tending to arouse sexual desire." So, to some, if it doesn't cause slight dampness or stiffening, it isn't erotic. To some, erotic photography is an artform. To others, it's not. Porn can be very UN-artistic, yet still arouse...and therefore, erotic. To other art purists, porn simply isn't art, so therefore it is part of the "nothing". The term "fetish" also gets a long list of differing opinion/explanations. To me, everything can be artistic. I've photographed vaginas that look very lovely and artistic. I've also shot some vaginas that were pure porn. Same subject, different result. Sometimes the line that seperates art from "the nothing" is not always clear. The Supreme Court couldn't even do it, and those people are supposed to be really smart. But for me, regardless of how an image starts out, it either ends up as "art" or it's part of "the nothing". So, yes, people do view the term "erotic" differently. Some include the need to be artistic, others don't. Fetish is another term that people aren't in agreement about. Sex is another. Some call sex "an intimate act between two lovers", while others call it "a party". It's best to explain how you perceive the words. Otherwise, you'll be lighting the candles and putting on the soft music, while the numerous guests in your rec room are rolling in Wesson Oil and rocking out to Pink Floyd while a heavy dark cloud of sweet smelling smoke rises up to the mirrored ball on the ceiling, next to the swing. So, when are we gonna shoot? Call now. Operators are standing by.
Photographer
Craig A McKenzie
Posts: 1767
Marine City, Michigan, US
Tim Hammond wrote: Porn gives your body a hardon. Erotica gives your brain a hardon. Unfortunately, the majority of the population can't tell the difference. Mind BOners...he he he. That explains Ellen Von Unwerths work... Mental Booooiiiinnnnngggggg! lol I like erotic more than porn...
Photographer
UnoMundo
Posts: 47532
Olympia, Washington, US
It's the response : Erotica is.....I wish my GF looks like that. Porn is .......I want to bone that
Model
Mija
Posts: 37
Milwaukee, Wisconsin, US
ZingArts wrote: Post a pic and we'll vote on it. I don't have anything...oh wait - I think this is erotic, kind of (makes me happy in a yummy, sassy way)
Model
Mija
Posts: 37
Milwaukee, Wisconsin, US
sh*t - okay, I guess I don't know how to do that
Photographer
Fotografia-di-Asia
Posts: 6118
Park City, Utah, US
Mija wrote: I don't have anything...oh wait - I think this is erotic, kind of (makes me happy in a yummy, sassy way)
work?
Photographer
Mike Kelcher
Posts: 13322
Minneapolis, Minnesota, US
Photographer
Fotografia-di-Asia
Posts: 6118
Park City, Utah, US
Leo Chan wrote:
work? it would be erotic if you were licking a cucumber. . . now it is just sort of weird. . .
Photographer
Doug Lester
Posts: 10591
Atlanta, Georgia, US
Mija wrote: Coming from an artistic background, ideally I would like to think that "erotic" is an artistic image, conveying, edgy sensuality. With this in mind, I would really like to expand my port more in this direction (as well as others). HOWEVER - sometimes I don't think my definition of "erotic" fits what everyone else thinks. Photographers: How do you define "erotic"? An erotic photo is one which is intended to titilate, to stimulate sexual desire and/or to appeal to the purient interest. It can be either nude or fully clothed as long as sexual stimulation is it's purpose. As far as 'style' goes it can be blatant porn, glamour, artistic, fetish or even fashion. It can be intended for a porn web site or to hand in an art gallery.
Photographer
D. Brian Nelson
Posts: 5477
Rapid City, South Dakota, US
Mija wrote: Photographers: How do you define "erotic"? Mija, it's what makes you wet thinking about it. -Don
Photographer
Richard Tallent
Posts: 7136
Beaumont, Texas, US
Fashion photography is any photography that depicts fashion. Erotic photography is any photography that depicts eros. Just like fashion, some erotic photography is editorial, some is commercial, some is documentary. On a separate axis, some is non-explicit (couple holding hands on the beach), some is extremely explicit, but both are erotic. Generally, the definition of porn is in the area where the axis of style is more commercial or documentary (less "redeeming artistic value", more about raw footage or selling eros rather than exploring it) and the axis of explicitness is higher. Too much Cartesian geometry in this explanation?
Photographer
La Seine by the Hudson
Posts: 8587
New York, New York, US
Erotic: dealing with sexuality. I'm not too fond of over-categorizing work, but nevertheless it's a word that people such as myself and others use to describe work that carries a sexual theme, but is cool somehow and for whatever reason, seperating it from garden-variety porn. Can be explicit, need not be. And so on... P.S. Erotic work need not be solely erotic. I can carry other themes or overtones (or undertones) as well (ie love, intimacy, isolation, togetherness, obsession, romance, fun and craziness, and on and on). I like it more as a descriptor than as a "category."
Photographer
Ivan123
Posts: 1037
Arlington, Virginia, US
Why do you care what the definition is? Just make photographs.
Photographer
La Seine by the Hudson
Posts: 8587
New York, New York, US
Ivan123 wrote: Why do you care what the definition is? Just make photographs. Even better. A lot better.
Photographer
Duncan
Posts: 2135
New York, New York, US
Photographer
Jay Bowman
Posts: 6511
Los Angeles, California, US
I don't know how to define erotic. But I have found a new way to spell erotic: M-i-j-a...
Photographer
Robert Randall
Posts: 13890
Chicago, Illinois, US
I ususlly follow these guide lines and then shoot accordingly. "By David L. Hudson Jr. First Amendment Center research attorney Supporters of the billion-dollar adult-entertainment industry argue that nude dancing contains the same elements of eroticism found in so-called âlegitimateâ theater and dance and therefore deserves no less First Amendment protection than those more mainstream forms of expression. City officials counter that adult businesses lead to crime and lower property values by debasing the quality of communities in which they locate; municipalities must be empowered to prevent blight and red-light districts, they say. City officials wield an array of restrictions that can be levied on adult businesses. These include restrictions on zoning, licensing, clothing, hours of operation and patron-performer buffer zones, to name just a few. When adult-club owners fight these regulations in the courts, cities are prone to pass new legislation, leading to more lawsuits and more regulations. The cycle has resulted in the development of a substantial body of First Amendment case law and doctrine, which serves to address the continuing tension between governmental efforts to regulate the adult-entertainment industry and the industryâs attempts to claim First Amendment protections. Even the U.S. Supreme Court has waded into the exotic-entertainment issue several times recently, with cases involving a Pennsylvania nude-dancing club, an adult-bookstore in Wisconsin and two adult bookstores in California. Many people do not understand why the removal of clothes by a dancer is a form of protected expression, but in fact the First Amendment protects many forms of controversial expression. A review of basic First Amendment principles and the history of erotic dance shows why the Supreme Court has ruled that regulation of nude dancing triggers First Amendment protections. The First Amendment protects far more than political speech and other verbal and nonverbal communication that many people may find objectionable. Nude dancing is one such type of expression. Basic First Amendment principles that relate to nude dancing: The First Amendment protects more than political speech and the expression of lofty ideas. The First Amendment protects not only verbal communication but also certain forms of symbolic or expressive conduct. The First Amendment protects expression that some people may find offensive or disagreeable. The First Amendment protects sexual expression as long as it does not meet the legal definition of obscenity. As recently as 2000, Justice Anthony Kennedy wrote in U.S. v. Playboy Entertainment Group that the âhistory of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.â Dancing: a form of expressive conduct Dance has roots in ancient history. The Greek poet Euripides described dance in the Bacchae. Aristotle wrote in the Poetics that the purpose of dance is âto represent menâs character as well as what they do and suffer.â The modern-day belly dance has been traced back to the Egyptians of the 4th century, and in ancient Rome, dancing was an integral part of the annual festivals Lupercalia and Saturnalia. âDance has biblical roots,â according to one federal appeals court judge who cited the passages in a 1990 case, Miller v. Civil City of South Bend: âLet them praise his name with dancing, making melody to him with timbrel and lyre!â (Psalms 149:3) and âPraise him with timbrel and danceâ (Psalms 150:4). According to Lucinda Jarrett, author of Stripping in Time: The History of Erotic Dancing, âthe censorious nature of Christianity has meant that sexual dance flourished in the East long before it emerged in Europe and Americaâ (p. 2). By the 19th century, however, Spanish gypsies were dancing the erotic flamenco in the cafes of Europe, and nude showgirls were performing in Parisian music halls, as David Cheshire has noted. Englandâs Windmill Theatre featured such shows as âMy Bare Lady,â âShe Strips to Conquerâ and âYes We Have No Pyjamas.â So-called âleg showsâ were introduced into the opera houses of the United States after the Civil War. Many Americans first witnessed Middle Eastern belly dancers at the 1893 Chicago Worldâs Columbian Exposition. Nude dancers graced the stage in Florenz Ziegfieldâs revues in New York City during the 1920s, and cheaper burlesque shows could be found at less glamorous locations. While many of the latter were raided, Jarrett reports, the so-called âlegitimateâ theater survived unscathed. The 1930s and â40s featured famous striptease artists such as Blaze Starr and Gypsy Rose Lee, and the â50s and â60s witnessed the growth of striptease acts and topless go-go dancers. According to dance expert and cultural anthropologist Judith Hanna, âthe 20th century placed the fully nude body into âhigh artâ theater dance â and moved exotic dance towards the mainstream.â Hanna, who has served as an expert witness in numerous adult-club cases, told firstamendmentcenter.org in an interview in March 2001 that ânude dancing in any kind of performance both reflects and configures a societyâs attitudes toward the body and its presentation.â She explained: âNudity in exotic dance communicates messages of freedom, independence, gender equality, acceptance of the body, modernity, historical tension between how the body was revealed in the past and is revealed now, empowerment, a break with social norms and challenge to the status quo.â The courts and nude dancing In early decisions, courts granted city officials broad discretion to prevent expressive activity that they considered lewd or indecent. However, some courts acknowledged that the process of determining whether or not something qualified as lewd was highly subjective. For example, in 1953 the future U.S. Supreme Court Justice Brennan wrote in an opinion for the New Jersey Supreme Court in Adams Theatre Co. v. Keenan: âThe standard âlewd and indecentâ is amorphous. ⦠There is ever present, too, the danger that censorship upon that ground is merely the expression of the censorâs own highly subjective view of morality unreasonably deviating from common notions of what is lewd and indecent, or may be a screen for reasons unrelated to moral standards.â In that decision, the New Jersey court ruled that Newark city officials had violated the First Amendment by denying a theater license to someone they feared would stage indecent burlesque shows. The court reasoned that the performance of a burlesque show was a form of speech entitled to protection under the federal and state constitutions. In the late 1960s, a few courts began to recognize that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. In its 1968 decision in In re Giannini, the California Supreme Court ruled that nude dancing was âpotentially a form of communication protected against state intrusion by the guarantees of the First Amendment.â The California high court quoted the definitions of dance listed in the Encyclopedia Britannica and the Century Dictionary, noting that âthe very definition of dance describes it as an expression of emotions or ideas.â The case that prompted this decision involved topless dancer Kelley Iser and Albert Giannini, owner of the nightclub where she danced. The two had been charged and convicted of willful and lewd exposure. Under state law, lewd conduct was considered obscene. Giannini and Iser appealed their convictions, arguing that the dancing was a form of expression protected by the First Amendment. The state attorney general who argued against their position maintained that topless dancing has no social value and is obscene. In deciding for the dancer and club owner, the California court noted that the First Amendment protects more than political speech. âThus, the First Amendment cannot be constricted into a straitjacket of protection for political expression alone,â the court wrote in In re Giannini. âIts embrace extends to all forms of communication, including the highest: the work of art.â The First Amendment applies to many different communications media, including motion pictures and various other types of entertainment, said the court, which reasoned that Iserâs dance, no matter how vulgar, communicated a message to her audience. The final question for the court was whether Iserâs dance constituted obscenity. The court threw out the convictions because the prosecution failed to introduce evidence about community standards, a factor that the U.S. Supreme Court had emphasized since its 1957 obscenity opinion Roth v. United States. âTo sanction convictions without expert evidence of community standards encourages the jury to condemn as obscene such conduct or material as is personally distasteful or offensive to the particular juror,â the California court wrote in In re Giannini. U.S. Supreme Court on nude dancing The U.S. Supreme Court initially addressed the issue of First Amendment protection for nude dancing in its 1972 decision California v. LaRue. In 1970 Californiaâs Department of Alcohol Beverage Control had issued rules regulating the type of live entertainment that could occur in businesses serving alcohol. The department was concerned by an increase in topless and bottomless dancing at bars. According to the department, increasing incidents of sexual misconduct (including prostitution and public masturbation) were being reported at many of these businesses. The regulations prohibited certain activities at bars serving alcohol, including: The performance of acts or simulated acts of intercourse, masturbation âor any sexual acts which are prohibited by law.â The actual or simulated touching of the breast, buttocks, anus or genitals. The public display of the pubic hair, anus or genitals. The showing of any films or pictures which feature the above-mentioned activities. When local bar owners challenged the constitutionality of the regulations, the state argued that the rules were necessary to prevent sex crimes, prostitution and drug abuse. The Supreme Court ruled 6-3 in favor of the regulations. Writing for the majority, Justice William Rehnquist noted that under the 21st Amendment, the states had broad power to regulate the distribution of alcohol within their borders. He did, however, hint that some of the dancing in the clubs merited constitutional protection when he wrote that âat least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression.â Justice William Brennan authored a short dissenting opinion in California v. LaRue, writing that the California regulations clearly applied to some expression deserving of First Amendment protection. Justice Thurgood Marshall wrote a lengthier dissent, finding that the state of California could not regulate sexual performances unless they qualified as obscene. He wrote that âthe empirical link between sex-related entertainment and the criminal activity popularly associated with it has never been proven and, indeed, has now been largely discredited.â Marshall also pointed out that the state could punish sex crimes and drug use directly, rather than engage in a âbroadscale attack on First Amendment freedoms.â The Supreme Court in its 1975 decision Doran v. Salem Inn again hinted that at least some nude dancing merits a degree of First Amendment protection. The case grew out of an ordinance passed by the town of North Hempstead, N.Y., that prohibited waitresses, barmaids and entertainers from exposing their breasts in public. The Court ruled that a lower federal court had not abused its discretion in granting several bars a preliminary injunction prohibiting the town from enforcing its anti-nudity ordinance. Again writing for the Court, Justice Rehnquist noted: âAlthough the customary âbarroomâ type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.â Rehnquist distinguished the North Hempstead ordinance in Doran v. Salem Inn from the California regulations in LaRue by noting that the town ordinance applied to nudity in any public place, not just in liquor establishments. He also quoted with approval the lower court judgeâs warning that the townâs anti-nudity law could apply to âthe performance of the âBallet Africainsâ and a number of other works of unquestionable artistic and socially redeeming significance.â The Court next addressed the constitutionality of restrictions upon nude dancing in its 1981 decision Schad v. Borough of Mount Ephraim. The town of Mount Ephraim, N.J., had passed an ordinance prohibiting all live entertainment within its borders. An adult bookstore was charged with violating the ordinance after it began offering live nude dancing in coin-operated booths. The bookstore challenged the constitutionality of the ordinance, arguing that the banning of non-obscene nude dancing violated free-expression rights. The Supreme Court ruled 7-2 that the ordinance was unconstitutional. In an opinion by Justice Byron White, the majority ruled that the boroughâs exclusion of live entertainment clearly violated the First Amendment. White wrote that ânude dancing is not without its First Amendment protections from official regulation.â The city had argued that the ordinance was merely a zoning regulation that did not target the content of expression and that the lawâs purpose was not to restrict expression but to avoid the problems associated with businesses that offer live entertainment, such as parking, trash and police protection. However, Justice White noted that other permitted businesses would cause these same problems. âWe do not find it self-evident that a theater, for example, would create greater parking problems than would a restaurant,â he wrote. Chief Justice William Burger and Justice Rehnquist dissented, finding that âa community of people are â within limits â masters of their own environment.â âCitizens should be free to choose to shape their community so that it embodies their conception of the âdecent life,ââ Burger wrote. The Schad ruling stands for the general principle that, while cities may zone adult businesses, they may not totally ban them. In three cases, the justices had stated in passing that nude dancing was entitled to some degree of First Amendment protection. The justices confirmed this in the 1991 decision Barnes v. Glen Theatre, Inc. Barnes concerned an Indiana law that criminalized public nudity and required dancers to wear G-strings and pasties. Even though the Court upheld the public nudity law, eight of the nine members recognized that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. A slender majority of the high court ruled against the dancers and the adult clubs. The five members of the majority wrote three separate opinions, making it difficult to understand the Courtâs ruling. Justices Rehnquist, Sandra Day OâConnor and Anthony Kennedy joined in a plurality opinion in Barnes. They recognized that ânude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.â They determined that requiring dancers to don G-strings and pasties was not a restriction on the First Amendment. They called it a âminimal restriction ⦠[that] leaves ample capacity to convey the dancerâs erotic message.â The plurality applied the OâBrien test and ruled that the government was justified in passing the public nudity law to protect the governmentâs interests in order and morality. They argued the law did not target erotic dancing but the âevilâ of âpublic nudity.â Justice Antonin Scalia said the law did not implicate the First Amendment but punished unlawful conduct; i.e., public nudity. He determined that the general law targeting public nudity was a generally applicable law that âis not subject to First Amendment scrutiny at all.â In a separate opinion, Justice David Souter, the other justice in the majority, also applied the OâBrien test but took a much different approach than the three-justice plurality. He based his decision on a concept called âsecondary effects,â which had grown out of adult-business zoning cases. The secondary-effects doctrine provides that government officials may regulate nude dancing as long as their reason for regulation is to combat harmful effects allegedly associated with adult businesses, such as increased crime or decreased property values. Souter reasoned that the nudity ban advanced the governmentâs interest in combating harmful secondary effects allegedly associated with adult businesses. Four justices â White, Marshall, Harry Blackmun and John Paul Stevens â dissented. They argued that the state had targeted exotic dancers because officials disliked nude dancing. âThat the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine,â Justice White wrote for the dissent. The four separate opinions in the 5-4 Barnes decision caused great confusion among the lower courts. One federal appeals court (in Triplett Grille, Inc. v. City of Akron, 1994) described trying to understand the case as âreading tea leaves.â Most lower courts, however, followed the reasoning of Justice Souter and used the secondary-effects rationale to regulate nude dancing. Other restraints on nude dancing Patron-performer buffer zones. Many municipalities have attempted to restrict contact between dancers and customers by establishing buffer zones. A few courts have upheld buffer zones of 10 feet, which eliminate table dances and lap dances. The 9th U.S. Circuit Court of Appeals upheld a 10-foot buffer zone between patron and performer in a Kent, Wash., ordinance. The club owners alleged that the buffer zone banned table dancing, which they argued was a unique form of expression. The appeals court in Colacurcio v. City of Kent (1998) said it would âleave the fine-tuning of the distance requirement to the legislative body.â The appeals court reasoned that the zone was a narrowly tailored way to prevent illegal sexual contact and drug transactions. The appeals court reasoned that the 10-foot requirement âdoes not rob dancers of their forum or their entire audience.â As to the club ownersâ arguments that table dancing is a unique form of expression, the court replied that âuniqueness alone is insufficient to trigger First Amendment protection.â Judge Stephen Reinhardt dissented, finding that table dancing was a unique form of expression compared to stage dancing. He reasoned that the club owners had presented enough evidence, including testimony from cultural anthropologist Hanna, that table dancing is âan altogether different form of expression that depends upon proximity and communicates a different and particular content.â A few courts have struck down patron-performer buffer zones as being too restrictive. A federal court in Texas struck down a 6-foot buffer zone in Wichita County, finding in LLEH, Inc. v. Wichita County, Texas (2000) that the purpose of the buffer zone was to drive the plaintiffs out of business. The court rejected the notion that the buffer zone was necessary to combat the transmission of drugs: âThe court finds absolutely no evidence to support a correlation between the drug trade and the six foot buffer requirement.â The court concluded that the countyâs interests in preventing illegal sexual contact could be satisfied by a 3-foot buffer. âA three-foot buffer zone would allow the Sheriffâs Department to easily and effectively enforce the no-touch rule without trampling on the protected message and/or expression of the dancers,â the court concluded in LLEH. However, in 2002 the 5th U.S. Circuit Court of Appeals reversed this ruling, finding that the 6-foot buffer zone was constitutional. The majority of courts have found likewise. Hanna says buffer zones substantially change the message conveyed by the dancer. She points out that âperformer-patron touch commonly occurs in the performing artsâ and that âmuch of contemporary theater has been breaking down barriers between spectator and performer.â The content of nude dancing. Some municipalities have gone so far as to censor the movements of exotic dancers. Many ordinances prohibit dancers from engaging in lewd or obscene activities. Some provisions go even further. For example, one Ohio administrative law prohibited dancers from committing âimproper conduct of any kind, type or character that would offend the publicâs sense of decency, sobriety or good order.â A federal judge struck down this provision, ruling in the 1999 case J.L. Spoons, Inc. v. OâConnor that it âgoes well beyond what is necessaryâ to further the stateâs interest in combating the harmful effects of adult businesses. The judge reasoned that this law would outlaw pop music superstar Michael Jacksonâs famous crotch grab. The judge also reasoned that this provision would give license to state agents to selectively punish certain dancers. A Wisconsin city passed a comprehensive ordinance regulating nearly all facets of adult businesses. One provision prohibited dancers from âappearing in a state of nudity or depicting specified sexual activities.â The ordinance defined these activities as: âthe fondling or erotic touching of human genitals, pubic region, buttocks, anus or female breasts.â The 7th U.S. Circuit Court of Appeals ruled that under Barnes and Pap's A.M., it was constitutional to prohibit totally nude dancing. But the appeals court said that banning specified sexual activities went too far. âBy restricting the particular movements and gestures of the erotic dancer, in addition to prohibiting full nudity, [the provision] unconstitutionally burdens protected expression,â said the 2000 ruling in Schultz v. City of Cumberland."
Photographer
Ex Voto Studio
Posts: 4985
Columbia, Maryland, US
Mike Walker wrote: Sexually oriented imagery that stops just short of porn by having some small redeeming element beyond titalation. I don't have words but if you check my port you will see an image of 2 models about to kiss (18+ disclaimer)...I think if I had posted an image of them kissing it would've seemed like porn to me. Let me know what you think...but in the end erotic is just a word and I think everyone will picture something different for that word so this is only my version it. by the way comments are always appreciated and I do like honesty not sunshine up my arse!
-troy
Photographer
Analog Nomad
Posts: 4097
Pattaya, Central, Thailand
What is this "guide lines" you speak of? Bob Randall Photography wrote: I ususlly follow these guide lines and then shoot accordingly. "By David L. Hudson Jr. First Amendment Center research attorney Supporters of the billion-dollar adult-entertainment industry argue that nude dancing contains the same elements of eroticism found in so-called âlegitimateâ theater and dance and therefore deserves no less First Amendment protection than those more mainstream forms of expression. City officials counter that adult businesses lead to crime and lower property values by debasing the quality of communities in which they locate; municipalities must be empowered to prevent blight and red-light districts, they say. City officials wield an array of restrictions that can be levied on adult businesses. These include restrictions on zoning, licensing, clothing, hours of operation and patron-performer buffer zones, to name just a few. When adult-club owners fight these regulations in the courts, cities are prone to pass new legislation, leading to more lawsuits and more regulations. The cycle has resulted in the development of a substantial body of First Amendment case law and doctrine, which serves to address the continuing tension between governmental efforts to regulate the adult-entertainment industry and the industryâs attempts to claim First Amendment protections. Even the U.S. Supreme Court has waded into the exotic-entertainment issue several times recently, with cases involving a Pennsylvania nude-dancing club, an adult-bookstore in Wisconsin and two adult bookstores in California. Many people do not understand why the removal of clothes by a dancer is a form of protected expression, but in fact the First Amendment protects many forms of controversial expression. A review of basic First Amendment principles and the history of erotic dance shows why the Supreme Court has ruled that regulation of nude dancing triggers First Amendment protections. The First Amendment protects far more than political speech and other verbal and nonverbal communication that many people may find objectionable. Nude dancing is one such type of expression. Basic First Amendment principles that relate to nude dancing: The First Amendment protects more than political speech and the expression of lofty ideas. The First Amendment protects not only verbal communication but also certain forms of symbolic or expressive conduct. The First Amendment protects expression that some people may find offensive or disagreeable. The First Amendment protects sexual expression as long as it does not meet the legal definition of obscenity. As recently as 2000, Justice Anthony Kennedy wrote in U.S. v. Playboy Entertainment Group that the âhistory of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.â Dancing: a form of expressive conduct Dance has roots in ancient history. The Greek poet Euripides described dance in the Bacchae. Aristotle wrote in the Poetics that the purpose of dance is âto represent menâs character as well as what they do and suffer.â The modern-day belly dance has been traced back to the Egyptians of the 4th century, and in ancient Rome, dancing was an integral part of the annual festivals Lupercalia and Saturnalia. âDance has biblical roots,â according to one federal appeals court judge who cited the passages in a 1990 case, Miller v. Civil City of South Bend: âLet them praise his name with dancing, making melody to him with timbrel and lyre!â (Psalms 149:3) and âPraise him with timbrel and danceâ (Psalms 150:4). According to Lucinda Jarrett, author of Stripping in Time: The History of Erotic Dancing, âthe censorious nature of Christianity has meant that sexual dance flourished in the East long before it emerged in Europe and Americaâ (p. 2). By the 19th century, however, Spanish gypsies were dancing the erotic flamenco in the cafes of Europe, and nude showgirls were performing in Parisian music halls, as David Cheshire has noted. Englandâs Windmill Theatre featured such shows as âMy Bare Lady,â âShe Strips to Conquerâ and âYes We Have No Pyjamas.â So-called âleg showsâ were introduced into the opera houses of the United States after the Civil War. Many Americans first witnessed Middle Eastern belly dancers at the 1893 Chicago Worldâs Columbian Exposition. Nude dancers graced the stage in Florenz Ziegfieldâs revues in New York City during the 1920s, and cheaper burlesque shows could be found at less glamorous locations. While many of the latter were raided, Jarrett reports, the so-called âlegitimateâ theater survived unscathed. The 1930s and â40s featured famous striptease artists such as Blaze Starr and Gypsy Rose Lee, and the â50s and â60s witnessed the growth of striptease acts and topless go-go dancers. According to dance expert and cultural anthropologist Judith Hanna, âthe 20th century placed the fully nude body into âhigh artâ theater dance â and moved exotic dance towards the mainstream.â Hanna, who has served as an expert witness in numerous adult-club cases, told firstamendmentcenter.org in an interview in March 2001 that ânude dancing in any kind of performance both reflects and configures a societyâs attitudes toward the body and its presentation.â She explained: âNudity in exotic dance communicates messages of freedom, independence, gender equality, acceptance of the body, modernity, historical tension between how the body was revealed in the past and is revealed now, empowerment, a break with social norms and challenge to the status quo.â The courts and nude dancing In early decisions, courts granted city officials broad discretion to prevent expressive activity that they considered lewd or indecent. However, some courts acknowledged that the process of determining whether or not something qualified as lewd was highly subjective. For example, in 1953 the future U.S. Supreme Court Justice Brennan wrote in an opinion for the New Jersey Supreme Court in Adams Theatre Co. v. Keenan: âThe standard âlewd and indecentâ is amorphous. ⦠There is ever present, too, the danger that censorship upon that ground is merely the expression of the censorâs own highly subjective view of morality unreasonably deviating from common notions of what is lewd and indecent, or may be a screen for reasons unrelated to moral standards.â In that decision, the New Jersey court ruled that Newark city officials had violated the First Amendment by denying a theater license to someone they feared would stage indecent burlesque shows. The court reasoned that the performance of a burlesque show was a form of speech entitled to protection under the federal and state constitutions. In the late 1960s, a few courts began to recognize that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. In its 1968 decision in In re Giannini, the California Supreme Court ruled that nude dancing was âpotentially a form of communication protected against state intrusion by the guarantees of the First Amendment.â The California high court quoted the definitions of dance listed in the Encyclopedia Britannica and the Century Dictionary, noting that âthe very definition of dance describes it as an expression of emotions or ideas.â The case that prompted this decision involved topless dancer Kelley Iser and Albert Giannini, owner of the nightclub where she danced. The two had been charged and convicted of willful and lewd exposure. Under state law, lewd conduct was considered obscene. Giannini and Iser appealed their convictions, arguing that the dancing was a form of expression protected by the First Amendment. The state attorney general who argued against their position maintained that topless dancing has no social value and is obscene. In deciding for the dancer and club owner, the California court noted that the First Amendment protects more than political speech. âThus, the First Amendment cannot be constricted into a straitjacket of protection for political expression alone,â the court wrote in In re Giannini. âIts embrace extends to all forms of communication, including the highest: the work of art.â The First Amendment applies to many different communications media, including motion pictures and various other types of entertainment, said the court, which reasoned that Iserâs dance, no matter how vulgar, communicated a message to her audience. The final question for the court was whether Iserâs dance constituted obscenity. The court threw out the convictions because the prosecution failed to introduce evidence about community standards, a factor that the U.S. Supreme Court had emphasized since its 1957 obscenity opinion Roth v. United States. âTo sanction convictions without expert evidence of community standards encourages the jury to condemn as obscene such conduct or material as is personally distasteful or offensive to the particular juror,â the California court wrote in In re Giannini. U.S. Supreme Court on nude dancing The U.S. Supreme Court initially addressed the issue of First Amendment protection for nude dancing in its 1972 decision California v. LaRue. In 1970 Californiaâs Department of Alcohol Beverage Control had issued rules regulating the type of live entertainment that could occur in businesses serving alcohol. The department was concerned by an increase in topless and bottomless dancing at bars. According to the department, increasing incidents of sexual misconduct (including prostitution and public masturbation) were being reported at many of these businesses. The regulations prohibited certain activities at bars serving alcohol, including: The performance of acts or simulated acts of intercourse, masturbation âor any sexual acts which are prohibited by law.â The actual or simulated touching of the breast, buttocks, anus or genitals. The public display of the pubic hair, anus or genitals. The showing of any films or pictures which feature the above-mentioned activities. When local bar owners challenged the constitutionality of the regulations, the state argued that the rules were necessary to prevent sex crimes, prostitution and drug abuse. The Supreme Court ruled 6-3 in favor of the regulations. Writing for the majority, Justice William Rehnquist noted that under the 21st Amendment, the states had broad power to regulate the distribution of alcohol within their borders. He did, however, hint that some of the dancing in the clubs merited constitutional protection when he wrote that âat least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression.â Justice William Brennan authored a short dissenting opinion in California v. LaRue, writing that the California regulations clearly applied to some expression deserving of First Amendment protection. Justice Thurgood Marshall wrote a lengthier dissent, finding that the state of California could not regulate sexual performances unless they qualified as obscene. He wrote that âthe empirical link between sex-related entertainment and the criminal activity popularly associated with it has never been proven and, indeed, has now been largely discredited.â Marshall also pointed out that the state could punish sex crimes and drug use directly, rather than engage in a âbroadscale attack on First Amendment freedoms.â The Supreme Court in its 1975 decision Doran v. Salem Inn again hinted that at least some nude dancing merits a degree of First Amendment protection. The case grew out of an ordinance passed by the town of North Hempstead, N.Y., that prohibited waitresses, barmaids and entertainers from exposing their breasts in public. The Court ruled that a lower federal court had not abused its discretion in granting several bars a preliminary injunction prohibiting the town from enforcing its anti-nudity ordinance. Again writing for the Court, Justice Rehnquist noted: âAlthough the customary âbarroomâ type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.â Rehnquist distinguished the North Hempstead ordinance in Doran v. Salem Inn from the California regulations in LaRue by noting that the town ordinance applied to nudity in any public place, not just in liquor establishments. He also quoted with approval the lower court judgeâs warning that the townâs anti-nudity law could apply to âthe performance of the âBallet Africainsâ and a number of other works of unquestionable artistic and socially redeeming significance.â The Court next addressed the constitutionality of restrictions upon nude dancing in its 1981 decision Schad v. Borough of Mount Ephraim. The town of Mount Ephraim, N.J., had passed an ordinance prohibiting all live entertainment within its borders. An adult bookstore was charged with violating the ordinance after it began offering live nude dancing in coin-operated booths. The bookstore challenged the constitutionality of the ordinance, arguing that the banning of non-obscene nude dancing violated free-expression rights. The Supreme Court ruled 7-2 that the ordinance was unconstitutional. In an opinion by Justice Byron White, the majority ruled that the boroughâs exclusion of live entertainment clearly violated the First Amendment. White wrote that ânude dancing is not without its First Amendment protections from official regulation.â The city had argued that the ordinance was merely a zoning regulation that did not target the content of expression and that the lawâs purpose was not to restrict expression but to avoid the problems associated with businesses that offer live entertainment, such as parking, trash and police protection. However, Justice White noted that other permitted businesses would cause these same problems. âWe do not find it self-evident that a theater, for example, would create greater parking problems than would a restaurant,â he wrote. Chief Justice William Burger and Justice Rehnquist dissented, finding that âa community of people are â within limits â masters of their own environment.â âCitizens should be free to choose to shape their community so that it embodies their conception of the âdecent life,ââ Burger wrote. The Schad ruling stands for the general principle that, while cities may zone adult businesses, they may not totally ban them. In three cases, the justices had stated in passing that nude dancing was entitled to some degree of First Amendment protection. The justices confirmed this in the 1991 decision Barnes v. Glen Theatre, Inc. Barnes concerned an Indiana law that criminalized public nudity and required dancers to wear G-strings and pasties. Even though the Court upheld the public nudity law, eight of the nine members recognized that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. A slender majority of the high court ruled against the dancers and the adult clubs. The five members of the majority wrote three separate opinions, making it difficult to understand the Courtâs ruling. Justices Rehnquist, Sandra Day OâConnor and Anthony Kennedy joined in a plurality opinion in Barnes. They recognized that ânude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.â They determined that requiring dancers to don G-strings and pasties was not a restriction on the First Amendment. They called it a âminimal restriction ⦠[that] leaves ample capacity to convey the dancerâs erotic message.â The plurality applied the OâBrien test and ruled that the government was justified in passing the public nudity law to protect the governmentâs interests in order and morality. They argued the law did not target erotic dancing but the âevilâ of âpublic nudity.â Justice Antonin Scalia said the law did not implicate the First Amendment but punished unlawful conduct; i.e., public nudity. He determined that the general law targeting public nudity was a generally applicable law that âis not subject to First Amendment scrutiny at all.â In a separate opinion, Justice David Souter, the other justice in the majority, also applied the OâBrien test but took a much different approach than the three-justice plurality. He based his decision on a concept called âsecondary effects,â which had grown out of adult-business zoning cases. The secondary-effects doctrine provides that government officials may regulate nude dancing as long as their reason for regulation is to combat harmful effects allegedly associated with adult businesses, such as increased crime or decreased property values. Souter reasoned that the nudity ban advanced the governmentâs interest in combating harmful secondary effects allegedly associated with adult businesses. Four justices â White, Marshall, Harry Blackmun and John Paul Stevens â dissented. They argued that the state had targeted exotic dancers because officials disliked nude dancing. âThat the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine,â Justice White wrote for the dissent. The four separate opinions in the 5-4 Barnes decision caused great confusion among the lower courts. One federal appeals court (in Triplett Grille, Inc. v. City of Akron, 1994) described trying to understand the case as âreading tea leaves.â Most lower courts, however, followed the reasoning of Justice Souter and used the secondary-effects rationale to regulate nude dancing. Other restraints on nude dancing Patron-performer buffer zones. Many municipalities have attempted to restrict contact between dancers and customers by establishing buffer zones. A few courts have upheld buffer zones of 10 feet, which eliminate table dances and lap dances. The 9th U.S. Circuit Court of Appeals upheld a 10-foot buffer zone between patron and performer in a Kent, Wash., ordinance. The club owners alleged that the buffer zone banned table dancing, which they argued was a unique form of expression. The appeals court in Colacurcio v. City of Kent (1998) said it would âleave the fine-tuning of the distance requirement to the legislative body.â The appeals court reasoned that the zone was a narrowly tailored way to prevent illegal sexual contact and drug transactions. The appeals court reasoned that the 10-foot requirement âdoes not rob dancers of their forum or their entire audience.â As to the club ownersâ arguments that table dancing is a unique form of expression, the court replied that âuniqueness alone is insufficient to trigger First Amendment protection.â Judge Stephen Reinhardt dissented, finding that table dancing was a unique form of expression compared to stage dancing. He reasoned that the club owners had presented enough evidence, including testimony from cultural anthropologist Hanna, that table dancing is âan altogether different form of expression that depends upon proximity and communicates a different and particular content.â A few courts have struck down patron-performer buffer zones as being too restrictive. A federal court in Texas struck down a 6-foot buffer zone in Wichita County, finding in LLEH, Inc. v. Wichita County, Texas (2000) that the purpose of the buffer zone was to drive the plaintiffs out of business. The court rejected the notion that the buffer zone was necessary to combat the transmission of drugs: âThe court finds absolutely no evidence to support a correlation between the drug trade and the six foot buffer requirement.â The court concluded that the countyâs interests in preventing illegal sexual contact could be satisfied by a 3-foot buffer. âA three-foot buffer zone would allow the Sheriffâs Department to easily and effectively enforce the no-touch rule without trampling on the protected message and/or expression of the dancers,â the court concluded in LLEH. However, in 2002 the 5th U.S. Circuit Court of Appeals reversed this ruling, finding that the 6-foot buffer zone was constitutional. The majority of courts have found likewise. Hanna says buffer zones substantially change the message conveyed by the dancer. She points out that âperformer-patron touch commonly occurs in the performing artsâ and that âmuch of contemporary theater has been breaking down barriers between spectator and performer.â The content of nude dancing. Some municipalities have gone so far as to censor the movements of exotic dancers. Many ordinances prohibit dancers from engaging in lewd or obscene activities. Some provisions go even further. For example, one Ohio administrative law prohibited dancers from committing âimproper conduct of any kind, type or character that would offend the publicâs sense of decency, sobriety or good order.â A federal judge struck down this provision, ruling in the 1999 case J.L. Spoons, Inc. v. OâConnor that it âgoes well beyond what is necessaryâ to further the stateâs interest in combating the harmful effects of adult businesses. The judge reasoned that this law would outlaw pop music superstar Michael Jacksonâs famous crotch grab. The judge also reasoned that this provision would give license to state agents to selectively punish certain dancers. A Wisconsin city passed a comprehensive ordinance regulating nearly all facets of adult businesses. One provision prohibited dancers from âappearing in a state of nudity or depicting specified sexual activities.â The ordinance defined these activities as: âthe fondling or erotic touching of human genitals, pubic region, buttocks, anus or female breasts.â The 7th U.S. Circuit Court of Appeals ruled that under Barnes and Pap's A.M., it was constitutional to prohibit totally nude dancing. But the appeals court said that banning specified sexual activities went too far. âBy restricting the particular movements and gestures of the erotic dancer, in addition to prohibiting full nudity, [the provision] unconstitutionally burdens protected expression,â said the 2000 ruling in Schultz v. City of Cumberland."
Photographer
Analog Nomad
Posts: 4097
Pattaya, Central, Thailand
What is this "guide lines" you speak of? Bob Randall Photography wrote: I ususlly follow these guide lines and then shoot accordingly. "By David L. Hudson Jr. First Amendment Center research attorney Supporters of the billion-dollar adult-entertainment industry argue that nude dancing contains the same elements of eroticism found in so-called âlegitimateâ theater and dance and therefore deserves no less First Amendment protection than those more mainstream forms of expression. City officials counter that adult businesses lead to crime and lower property values by debasing the quality of communities in which they locate; municipalities must be empowered to prevent blight and red-light districts, they say. City officials wield an array of restrictions that can be levied on adult businesses. These include restrictions on zoning, licensing, clothing, hours of operation and patron-performer buffer zones, to name just a few. When adult-club owners fight these regulations in the courts, cities are prone to pass new legislation, leading to more lawsuits and more regulations. The cycle has resulted in the development of a substantial body of First Amendment case law and doctrine, which serves to address the continuing tension between governmental efforts to regulate the adult-entertainment industry and the industryâs attempts to claim First Amendment protections. Even the U.S. Supreme Court has waded into the exotic-entertainment issue several times recently, with cases involving a Pennsylvania nude-dancing club, an adult-bookstore in Wisconsin and two adult bookstores in California. Many people do not understand why the removal of clothes by a dancer is a form of protected expression, but in fact the First Amendment protects many forms of controversial expression. A review of basic First Amendment principles and the history of erotic dance shows why the Supreme Court has ruled that regulation of nude dancing triggers First Amendment protections. The First Amendment protects far more than political speech and other verbal and nonverbal communication that many people may find objectionable. Nude dancing is one such type of expression. Basic First Amendment principles that relate to nude dancing: The First Amendment protects more than political speech and the expression of lofty ideas. The First Amendment protects not only verbal communication but also certain forms of symbolic or expressive conduct. The First Amendment protects expression that some people may find offensive or disagreeable. The First Amendment protects sexual expression as long as it does not meet the legal definition of obscenity. As recently as 2000, Justice Anthony Kennedy wrote in U.S. v. Playboy Entertainment Group that the âhistory of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.â Dancing: a form of expressive conduct Dance has roots in ancient history. The Greek poet Euripides described dance in the Bacchae. Aristotle wrote in the Poetics that the purpose of dance is âto represent menâs character as well as what they do and suffer.â The modern-day belly dance has been traced back to the Egyptians of the 4th century, and in ancient Rome, dancing was an integral part of the annual festivals Lupercalia and Saturnalia. âDance has biblical roots,â according to one federal appeals court judge who cited the passages in a 1990 case, Miller v. Civil City of South Bend: âLet them praise his name with dancing, making melody to him with timbrel and lyre!â (Psalms 149:3) and âPraise him with timbrel and danceâ (Psalms 150:4). According to Lucinda Jarrett, author of Stripping in Time: The History of Erotic Dancing, âthe censorious nature of Christianity has meant that sexual dance flourished in the East long before it emerged in Europe and Americaâ (p. 2). By the 19th century, however, Spanish gypsies were dancing the erotic flamenco in the cafes of Europe, and nude showgirls were performing in Parisian music halls, as David Cheshire has noted. Englandâs Windmill Theatre featured such shows as âMy Bare Lady,â âShe Strips to Conquerâ and âYes We Have No Pyjamas.â So-called âleg showsâ were introduced into the opera houses of the United States after the Civil War. Many Americans first witnessed Middle Eastern belly dancers at the 1893 Chicago Worldâs Columbian Exposition. Nude dancers graced the stage in Florenz Ziegfieldâs revues in New York City during the 1920s, and cheaper burlesque shows could be found at less glamorous locations. While many of the latter were raided, Jarrett reports, the so-called âlegitimateâ theater survived unscathed. The 1930s and â40s featured famous striptease artists such as Blaze Starr and Gypsy Rose Lee, and the â50s and â60s witnessed the growth of striptease acts and topless go-go dancers. According to dance expert and cultural anthropologist Judith Hanna, âthe 20th century placed the fully nude body into âhigh artâ theater dance â and moved exotic dance towards the mainstream.â Hanna, who has served as an expert witness in numerous adult-club cases, told firstamendmentcenter.org in an interview in March 2001 that ânude dancing in any kind of performance both reflects and configures a societyâs attitudes toward the body and its presentation.â She explained: âNudity in exotic dance communicates messages of freedom, independence, gender equality, acceptance of the body, modernity, historical tension between how the body was revealed in the past and is revealed now, empowerment, a break with social norms and challenge to the status quo.â The courts and nude dancing In early decisions, courts granted city officials broad discretion to prevent expressive activity that they considered lewd or indecent. However, some courts acknowledged that the process of determining whether or not something qualified as lewd was highly subjective. For example, in 1953 the future U.S. Supreme Court Justice Brennan wrote in an opinion for the New Jersey Supreme Court in Adams Theatre Co. v. Keenan: âThe standard âlewd and indecentâ is amorphous. ⦠There is ever present, too, the danger that censorship upon that ground is merely the expression of the censorâs own highly subjective view of morality unreasonably deviating from common notions of what is lewd and indecent, or may be a screen for reasons unrelated to moral standards.â In that decision, the New Jersey court ruled that Newark city officials had violated the First Amendment by denying a theater license to someone they feared would stage indecent burlesque shows. The court reasoned that the performance of a burlesque show was a form of speech entitled to protection under the federal and state constitutions. In the late 1960s, a few courts began to recognize that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. In its 1968 decision in In re Giannini, the California Supreme Court ruled that nude dancing was âpotentially a form of communication protected against state intrusion by the guarantees of the First Amendment.â The California high court quoted the definitions of dance listed in the Encyclopedia Britannica and the Century Dictionary, noting that âthe very definition of dance describes it as an expression of emotions or ideas.â The case that prompted this decision involved topless dancer Kelley Iser and Albert Giannini, owner of the nightclub where she danced. The two had been charged and convicted of willful and lewd exposure. Under state law, lewd conduct was considered obscene. Giannini and Iser appealed their convictions, arguing that the dancing was a form of expression protected by the First Amendment. The state attorney general who argued against their position maintained that topless dancing has no social value and is obscene. In deciding for the dancer and club owner, the California court noted that the First Amendment protects more than political speech. âThus, the First Amendment cannot be constricted into a straitjacket of protection for political expression alone,â the court wrote in In re Giannini. âIts embrace extends to all forms of communication, including the highest: the work of art.â The First Amendment applies to many different communications media, including motion pictures and various other types of entertainment, said the court, which reasoned that Iserâs dance, no matter how vulgar, communicated a message to her audience. The final question for the court was whether Iserâs dance constituted obscenity. The court threw out the convictions because the prosecution failed to introduce evidence about community standards, a factor that the U.S. Supreme Court had emphasized since its 1957 obscenity opinion Roth v. United States. âTo sanction convictions without expert evidence of community standards encourages the jury to condemn as obscene such conduct or material as is personally distasteful or offensive to the particular juror,â the California court wrote in In re Giannini. U.S. Supreme Court on nude dancing The U.S. Supreme Court initially addressed the issue of First Amendment protection for nude dancing in its 1972 decision California v. LaRue. In 1970 Californiaâs Department of Alcohol Beverage Control had issued rules regulating the type of live entertainment that could occur in businesses serving alcohol. The department was concerned by an increase in topless and bottomless dancing at bars. According to the department, increasing incidents of sexual misconduct (including prostitution and public masturbation) were being reported at many of these businesses. The regulations prohibited certain activities at bars serving alcohol, including: The performance of acts or simulated acts of intercourse, masturbation âor any sexual acts which are prohibited by law.â The actual or simulated touching of the breast, buttocks, anus or genitals. The public display of the pubic hair, anus or genitals. The showing of any films or pictures which feature the above-mentioned activities. When local bar owners challenged the constitutionality of the regulations, the state argued that the rules were necessary to prevent sex crimes, prostitution and drug abuse. The Supreme Court ruled 6-3 in favor of the regulations. Writing for the majority, Justice William Rehnquist noted that under the 21st Amendment, the states had broad power to regulate the distribution of alcohol within their borders. He did, however, hint that some of the dancing in the clubs merited constitutional protection when he wrote that âat least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression.â Justice William Brennan authored a short dissenting opinion in California v. LaRue, writing that the California regulations clearly applied to some expression deserving of First Amendment protection. Justice Thurgood Marshall wrote a lengthier dissent, finding that the state of California could not regulate sexual performances unless they qualified as obscene. He wrote that âthe empirical link between sex-related entertainment and the criminal activity popularly associated with it has never been proven and, indeed, has now been largely discredited.â Marshall also pointed out that the state could punish sex crimes and drug use directly, rather than engage in a âbroadscale attack on First Amendment freedoms.â The Supreme Court in its 1975 decision Doran v. Salem Inn again hinted that at least some nude dancing merits a degree of First Amendment protection. The case grew out of an ordinance passed by the town of North Hempstead, N.Y., that prohibited waitresses, barmaids and entertainers from exposing their breasts in public. The Court ruled that a lower federal court had not abused its discretion in granting several bars a preliminary injunction prohibiting the town from enforcing its anti-nudity ordinance. Again writing for the Court, Justice Rehnquist noted: âAlthough the customary âbarroomâ type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.â Rehnquist distinguished the North Hempstead ordinance in Doran v. Salem Inn from the California regulations in LaRue by noting that the town ordinance applied to nudity in any public place, not just in liquor establishments. He also quoted with approval the lower court judgeâs warning that the townâs anti-nudity law could apply to âthe performance of the âBallet Africainsâ and a number of other works of unquestionable artistic and socially redeeming significance.â The Court next addressed the constitutionality of restrictions upon nude dancing in its 1981 decision Schad v. Borough of Mount Ephraim. The town of Mount Ephraim, N.J., had passed an ordinance prohibiting all live entertainment within its borders. An adult bookstore was charged with violating the ordinance after it began offering live nude dancing in coin-operated booths. The bookstore challenged the constitutionality of the ordinance, arguing that the banning of non-obscene nude dancing violated free-expression rights. The Supreme Court ruled 7-2 that the ordinance was unconstitutional. In an opinion by Justice Byron White, the majority ruled that the boroughâs exclusion of live entertainment clearly violated the First Amendment. White wrote that ânude dancing is not without its First Amendment protections from official regulation.â The city had argued that the ordinance was merely a zoning regulation that did not target the content of expression and that the lawâs purpose was not to restrict expression but to avoid the problems associated with businesses that offer live entertainment, such as parking, trash and police protection. However, Justice White noted that other permitted businesses would cause these same problems. âWe do not find it self-evident that a theater, for example, would create greater parking problems than would a restaurant,â he wrote. Chief Justice William Burger and Justice Rehnquist dissented, finding that âa community of people are â within limits â masters of their own environment.â âCitizens should be free to choose to shape their community so that it embodies their conception of the âdecent life,ââ Burger wrote. The Schad ruling stands for the general principle that, while cities may zone adult businesses, they may not totally ban them. In three cases, the justices had stated in passing that nude dancing was entitled to some degree of First Amendment protection. The justices confirmed this in the 1991 decision Barnes v. Glen Theatre, Inc. Barnes concerned an Indiana law that criminalized public nudity and required dancers to wear G-strings and pasties. Even though the Court upheld the public nudity law, eight of the nine members recognized that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. A slender majority of the high court ruled against the dancers and the adult clubs. The five members of the majority wrote three separate opinions, making it difficult to understand the Courtâs ruling. Justices Rehnquist, Sandra Day OâConnor and Anthony Kennedy joined in a plurality opinion in Barnes. They recognized that ânude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.â They determined that requiring dancers to don G-strings and pasties was not a restriction on the First Amendment. They called it a âminimal restriction ⦠[that] leaves ample capacity to convey the dancerâs erotic message.â The plurality applied the OâBrien test and ruled that the government was justified in passing the public nudity law to protect the governmentâs interests in order and morality. They argued the law did not target erotic dancing but the âevilâ of âpublic nudity.â Justice Antonin Scalia said the law did not implicate the First Amendment but punished unlawful conduct; i.e., public nudity. He determined that the general law targeting public nudity was a generally applicable law that âis not subject to First Amendment scrutiny at all.â In a separate opinion, Justice David Souter, the other justice in the majority, also applied the OâBrien test but took a much different approach than the three-justice plurality. He based his decision on a concept called âsecondary effects,â which had grown out of adult-business zoning cases. The secondary-effects doctrine provides that government officials may regulate nude dancing as long as their reason for regulation is to combat harmful effects allegedly associated with adult businesses, such as increased crime or decreased property values. Souter reasoned that the nudity ban advanced the governmentâs interest in combating harmful secondary effects allegedly associated with adult businesses. Four justices â White, Marshall, Harry Blackmun and John Paul Stevens â dissented. They argued that the state had targeted exotic dancers because officials disliked nude dancing. âThat the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine,â Justice White wrote for the dissent. The four separate opinions in the 5-4 Barnes decision caused great confusion among the lower courts. One federal appeals court (in Triplett Grille, Inc. v. City of Akron, 1994) described trying to understand the case as âreading tea leaves.â Most lower courts, however, followed the reasoning of Justice Souter and used the secondary-effects rationale to regulate nude dancing. Other restraints on nude dancing Patron-performer buffer zones. Many municipalities have attempted to restrict contact between dancers and customers by establishing buffer zones. A few courts have upheld buffer zones of 10 feet, which eliminate table dances and lap dances. The 9th U.S. Circuit Court of Appeals upheld a 10-foot buffer zone between patron and performer in a Kent, Wash., ordinance. The club owners alleged that the buffer zone banned table dancing, which they argued was a unique form of expression. The appeals court in Colacurcio v. City of Kent (1998) said it would âleave the fine-tuning of the distance requirement to the legislative body.â The appeals court reasoned that the zone was a narrowly tailored way to prevent illegal sexual contact and drug transactions. The appeals court reasoned that the 10-foot requirement âdoes not rob dancers of their forum or their entire audience.â As to the club ownersâ arguments that table dancing is a unique form of expression, the court replied that âuniqueness alone is insufficient to trigger First Amendment protection.â Judge Stephen Reinhardt dissented, finding that table dancing was a unique form of expression compared to stage dancing. He reasoned that the club owners had presented enough evidence, including testimony from cultural anthropologist Hanna, that table dancing is âan altogether different form of expression that depends upon proximity and communicates a different and particular content.â A few courts have struck down patron-performer buffer zones as being too restrictive. A federal court in Texas struck down a 6-foot buffer zone in Wichita County, finding in LLEH, Inc. v. Wichita County, Texas (2000) that the purpose of the buffer zone was to drive the plaintiffs out of business. The court rejected the notion that the buffer zone was necessary to combat the transmission of drugs: âThe court finds absolutely no evidence to support a correlation between the drug trade and the six foot buffer requirement.â The court concluded that the countyâs interests in preventing illegal sexual contact could be satisfied by a 3-foot buffer. âA three-foot buffer zone would allow the Sheriffâs Department to easily and effectively enforce the no-touch rule without trampling on the protected message and/or expression of the dancers,â the court concluded in LLEH. However, in 2002 the 5th U.S. Circuit Court of Appeals reversed this ruling, finding that the 6-foot buffer zone was constitutional. The majority of courts have found likewise. Hanna says buffer zones substantially change the message conveyed by the dancer. She points out that âperformer-patron touch commonly occurs in the performing artsâ and that âmuch of contemporary theater has been breaking down barriers between spectator and performer.â The content of nude dancing. Some municipalities have gone so far as to censor the movements of exotic dancers. Many ordinances prohibit dancers from engaging in lewd or obscene activities. Some provisions go even further. For example, one Ohio administrative law prohibited dancers from committing âimproper conduct of any kind, type or character that would offend the publicâs sense of decency, sobriety or good order.â A federal judge struck down this provision, ruling in the 1999 case J.L. Spoons, Inc. v. OâConnor that it âgoes well beyond what is necessaryâ to further the stateâs interest in combating the harmful effects of adult businesses. The judge reasoned that this law would outlaw pop music superstar Michael Jacksonâs famous crotch grab. The judge also reasoned that this provision would give license to state agents to selectively punish certain dancers. A Wisconsin city passed a comprehensive ordinance regulating nearly all facets of adult businesses. One provision prohibited dancers from âappearing in a state of nudity or depicting specified sexual activities.â The ordinance defined these activities as: âthe fondling or erotic touching of human genitals, pubic region, buttocks, anus or female breasts.â The 7th U.S. Circuit Court of Appeals ruled that under Barnes and Pap's A.M., it was constitutional to prohibit totally nude dancing. But the appeals court said that banning specified sexual activities went too far. âBy restricting the particular movements and gestures of the erotic dancer, in addition to prohibiting full nudity, [the provision] unconstitutionally burdens protected expression,â said the 2000 ruling in Schultz v. City of Cumberland."
Photographer
Marcus J. Ranum
Posts: 3247
MORRISDALE, Pennsylvania, US
Stephen Dawson wrote: Something is erotic if its intent is to arouse sexual desire. Intent doesn't work, because intent is what the artist is attempting to achieve. It's erotic if it's sexually arousing - whether the artist intended it to be, or not. I had some interesting first-hand experience with this. Someone Emailed me once and thanked me for putting such erotic photos in my gallery. Turns out that he was really really turned on by an image I'd done of a girl's feet (in shoes and stockings) tied together. It wasn't erotic to me (my intent) but it was to him (his desire) mjr.
Photographer
Giacomo Cirrincioni
Posts: 22234
Stamford, Connecticut, US
Mija wrote: Photographers: How do you define "erotic"? Josie Nutter
Photographer
PPRO Analyst
Posts: 149
Chicago, Illinois, US
Mija wrote: Photographers: How do you define "erotic"? Anjel Britt
Photographer
Boho Hobo
Posts: 25351
Santa Barbara, California, US
Mija wrote: Coming from an artistic background, ideally I would like to think that "erotic" is an artistic image, conveying, edgy sensuality. With this in mind, I would really like to expand my port more in this direction (as well as others). HOWEVER - sometimes I don't think my definition of "erotic" fits what everyone else thinks. Photographers: How do you define "erotic"? It's bigger than sex. bigger than sensuality. It encompasses all of life if you can handle it.
Photographer
Fotografia-di-Asia
Posts: 6118
Park City, Utah, US
D. Brian Nelson wrote:
Mija, it's what makes you wet thinking about it. -Don Simple and to the point. But for her photo, I think it would what gives a guy a woody. That photo doesn't do it for me.
Photographer
giovanni gruttola
Posts: 1279
Middle Island, New York, US
Mija wrote: Photographers: How do you define "erotic"? I don't (and never will)... BUT... I here Websters' has a definition of it :-o
Photographer
Luminos
Posts: 6065
Columbia, Maryland, US
It's subjective, so I don't define it, but instead try to figure out what others mean by it. For the same reason, I avoid the term "art nude" as much as possible, since some folks seem to have hijacked that word as a euphemism for "porn". I prefer the term "classical nude" or "form studies". Such are erotic or not depending on the viewer, but the purpose is not to provide gross stimulation. I do define porn - as being anything shot primarily for the purpose of getting the viewer excited prior to sex (singly or in groups). The shot itself may not involve a sexual act, or even nudity, but is shot in a way to target (emphasis on target here as the intent of the photographer) some particular viewer's orientation and suggestibility. I do not define porn as wrong. Only if the production of it or display of it is done at the expense of a party incapable of proper consent (children or mentally disabled), is done without proper consent (hidden cameras or release of private images or video), or involves the commission of a crime (snuff, rape, etc.) do I consider it wrong. Bad I reserve as a qualitative description. But all that is just my way of thinking.
Photographer
ReallyRandy
Posts: 460
Fort Lauderdale, Florida, US
It's erotic if "it" moves a little ;-)
Photographer
Ivan123
Posts: 1037
Arlington, Virginia, US
bang bang photo wrote: What is this "guide lines" you speak of? OK, Bang Bang, it is bad enough that you make an 8 word post and then QUOTE several pages of text to no purpose because they appeared just a couple of posts above yours. But then to DOUBLE post??? Maybe we should explore the "edit" button. What do you think?
Photographer
Offf the Page
Posts: 174
Beverly Hills, California, US
Model
L E O III
Posts: 2534
Toledo, Ohio, US
Duncan wrote: If I get a chubby! Yep......that just about say it!
Photographer
Click Hamilton
Posts: 36555
San Diego, California, US
BOB, after this, you might need a box of Viagra to shoot straight Bob Randall Photography wrote: I ususlly follow these guide lines and then shoot accordingly. "By David L. Hudson Jr. First Amendment Center research attorney Supporters of the billion-dollar adult-entertainment industry argue that nude dancing contains the same elements of eroticism found in so-called âlegitimateâ theater and dance and therefore deserves no less First Amendment protection than those more mainstream forms of expression. City officials counter that adult businesses lead to crime and lower property values by debasing the quality of communities in which they locate; municipalities must be empowered to prevent blight and red-light districts, they say. City officials wield an array of restrictions that can be levied on adult businesses. These include restrictions on zoning, licensing, clothing, hours of operation and patron-performer buffer zones, to name just a few. When adult-club owners fight these regulations in the courts, cities are prone to pass new legislation, leading to more lawsuits and more regulations. The cycle has resulted in the development of a substantial body of First Amendment case law and doctrine, which serves to address the continuing tension between governmental efforts to regulate the adult-entertainment industry and the industryâs attempts to claim First Amendment protections. Even the U.S. Supreme Court has waded into the exotic-entertainment issue several times recently, with cases involving a Pennsylvania nude-dancing club, an adult-bookstore in Wisconsin and two adult bookstores in California. Many people do not understand why the removal of clothes by a dancer is a form of protected expression, but in fact the First Amendment protects many forms of controversial expression. A review of basic First Amendment principles and the history of erotic dance shows why the Supreme Court has ruled that regulation of nude dancing triggers First Amendment protections. The First Amendment protects far more than political speech and other verbal and nonverbal communication that many people may find objectionable. Nude dancing is one such type of expression. Basic First Amendment principles that relate to nude dancing: The First Amendment protects more than political speech and the expression of lofty ideas. The First Amendment protects not only verbal communication but also certain forms of symbolic or expressive conduct. The First Amendment protects expression that some people may find offensive or disagreeable. The First Amendment protects sexual expression as long as it does not meet the legal definition of obscenity. As recently as 2000, Justice Anthony Kennedy wrote in U.S. v. Playboy Entertainment Group that the âhistory of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.â Dancing: a form of expressive conduct Dance has roots in ancient history. The Greek poet Euripides described dance in the Bacchae. Aristotle wrote in the Poetics that the purpose of dance is âto represent menâs character as well as what they do and suffer.â The modern-day belly dance has been traced back to the Egyptians of the 4th century, and in ancient Rome, dancing was an integral part of the annual festivals Lupercalia and Saturnalia. âDance has biblical roots,â according to one federal appeals court judge who cited the passages in a 1990 case, Miller v. Civil City of South Bend: âLet them praise his name with dancing, making melody to him with timbrel and lyre!â (Psalms 149:3) and âPraise him with timbrel and danceâ (Psalms 150:4). According to Lucinda Jarrett, author of Stripping in Time: The History of Erotic Dancing, âthe censorious nature of Christianity has meant that sexual dance flourished in the East long before it emerged in Europe and Americaâ (p. 2). By the 19th century, however, Spanish gypsies were dancing the erotic flamenco in the cafes of Europe, and nude showgirls were performing in Parisian music halls, as David Cheshire has noted. Englandâs Windmill Theatre featured such shows as âMy Bare Lady,â âShe Strips to Conquerâ and âYes We Have No Pyjamas.â So-called âleg showsâ were introduced into the opera houses of the United States after the Civil War. Many Americans first witnessed Middle Eastern belly dancers at the 1893 Chicago Worldâs Columbian Exposition. Nude dancers graced the stage in Florenz Ziegfieldâs revues in New York City during the 1920s, and cheaper burlesque shows could be found at less glamorous locations. While many of the latter were raided, Jarrett reports, the so-called âlegitimateâ theater survived unscathed. The 1930s and â40s featured famous striptease artists such as Blaze Starr and Gypsy Rose Lee, and the â50s and â60s witnessed the growth of striptease acts and topless go-go dancers. According to dance expert and cultural anthropologist Judith Hanna, âthe 20th century placed the fully nude body into âhigh artâ theater dance â and moved exotic dance towards the mainstream.â Hanna, who has served as an expert witness in numerous adult-club cases, told firstamendmentcenter.org in an interview in March 2001 that ânude dancing in any kind of performance both reflects and configures a societyâs attitudes toward the body and its presentation.â She explained: âNudity in exotic dance communicates messages of freedom, independence, gender equality, acceptance of the body, modernity, historical tension between how the body was revealed in the past and is revealed now, empowerment, a break with social norms and challenge to the status quo.â The courts and nude dancing In early decisions, courts granted city officials broad discretion to prevent expressive activity that they considered lewd or indecent. However, some courts acknowledged that the process of determining whether or not something qualified as lewd was highly subjective. For example, in 1953 the future U.S. Supreme Court Justice Brennan wrote in an opinion for the New Jersey Supreme Court in Adams Theatre Co. v. Keenan: âThe standard âlewd and indecentâ is amorphous. ⦠There is ever present, too, the danger that censorship upon that ground is merely the expression of the censorâs own highly subjective view of morality unreasonably deviating from common notions of what is lewd and indecent, or may be a screen for reasons unrelated to moral standards.â In that decision, the New Jersey court ruled that Newark city officials had violated the First Amendment by denying a theater license to someone they feared would stage indecent burlesque shows. The court reasoned that the performance of a burlesque show was a form of speech entitled to protection under the federal and state constitutions. In the late 1960s, a few courts began to recognize that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. In its 1968 decision in In re Giannini, the California Supreme Court ruled that nude dancing was âpotentially a form of communication protected against state intrusion by the guarantees of the First Amendment.â The California high court quoted the definitions of dance listed in the Encyclopedia Britannica and the Century Dictionary, noting that âthe very definition of dance describes it as an expression of emotions or ideas.â The case that prompted this decision involved topless dancer Kelley Iser and Albert Giannini, owner of the nightclub where she danced. The two had been charged and convicted of willful and lewd exposure. Under state law, lewd conduct was considered obscene. Giannini and Iser appealed their convictions, arguing that the dancing was a form of expression protected by the First Amendment. The state attorney general who argued against their position maintained that topless dancing has no social value and is obscene. In deciding for the dancer and club owner, the California court noted that the First Amendment protects more than political speech. âThus, the First Amendment cannot be constricted into a straitjacket of protection for political expression alone,â the court wrote in In re Giannini. âIts embrace extends to all forms of communication, including the highest: the work of art.â The First Amendment applies to many different communications media, including motion pictures and various other types of entertainment, said the court, which reasoned that Iserâs dance, no matter how vulgar, communicated a message to her audience. The final question for the court was whether Iserâs dance constituted obscenity. The court threw out the convictions because the prosecution failed to introduce evidence about community standards, a factor that the U.S. Supreme Court had emphasized since its 1957 obscenity opinion Roth v. United States. âTo sanction convictions without expert evidence of community standards encourages the jury to condemn as obscene such conduct or material as is personally distasteful or offensive to the particular juror,â the California court wrote in In re Giannini. U.S. Supreme Court on nude dancing The U.S. Supreme Court initially addressed the issue of First Amendment protection for nude dancing in its 1972 decision California v. LaRue. In 1970 Californiaâs Department of Alcohol Beverage Control had issued rules regulating the type of live entertainment that could occur in businesses serving alcohol. The department was concerned by an increase in topless and bottomless dancing at bars. According to the department, increasing incidents of sexual misconduct (including prostitution and public masturbation) were being reported at many of these businesses. The regulations prohibited certain activities at bars serving alcohol, including: The performance of acts or simulated acts of intercourse, masturbation âor any sexual acts which are prohibited by law.â The actual or simulated touching of the breast, buttocks, anus or genitals. The public display of the pubic hair, anus or genitals. The showing of any films or pictures which feature the above-mentioned activities. When local bar owners challenged the constitutionality of the regulations, the state argued that the rules were necessary to prevent sex crimes, prostitution and drug abuse. The Supreme Court ruled 6-3 in favor of the regulations. Writing for the majority, Justice William Rehnquist noted that under the 21st Amendment, the states had broad power to regulate the distribution of alcohol within their borders. He did, however, hint that some of the dancing in the clubs merited constitutional protection when he wrote that âat least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression.â Justice William Brennan authored a short dissenting opinion in California v. LaRue, writing that the California regulations clearly applied to some expression deserving of First Amendment protection. Justice Thurgood Marshall wrote a lengthier dissent, finding that the state of California could not regulate sexual performances unless they qualified as obscene. He wrote that âthe empirical link between sex-related entertainment and the criminal activity popularly associated with it has never been proven and, indeed, has now been largely discredited.â Marshall also pointed out that the state could punish sex crimes and drug use directly, rather than engage in a âbroadscale attack on First Amendment freedoms.â The Supreme Court in its 1975 decision Doran v. Salem Inn again hinted that at least some nude dancing merits a degree of First Amendment protection. The case grew out of an ordinance passed by the town of North Hempstead, N.Y., that prohibited waitresses, barmaids and entertainers from exposing their breasts in public. The Court ruled that a lower federal court had not abused its discretion in granting several bars a preliminary injunction prohibiting the town from enforcing its anti-nudity ordinance. Again writing for the Court, Justice Rehnquist noted: âAlthough the customary âbarroomâ type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.â Rehnquist distinguished the North Hempstead ordinance in Doran v. Salem Inn from the California regulations in LaRue by noting that the town ordinance applied to nudity in any public place, not just in liquor establishments. He also quoted with approval the lower court judgeâs warning that the townâs anti-nudity law could apply to âthe performance of the âBallet Africainsâ and a number of other works of unquestionable artistic and socially redeeming significance.â The Court next addressed the constitutionality of restrictions upon nude dancing in its 1981 decision Schad v. Borough of Mount Ephraim. The town of Mount Ephraim, N.J., had passed an ordinance prohibiting all live entertainment within its borders. An adult bookstore was charged with violating the ordinance after it began offering live nude dancing in coin-operated booths. The bookstore challenged the constitutionality of the ordinance, arguing that the banning of non-obscene nude dancing violated free-expression rights. The Supreme Court ruled 7-2 that the ordinance was unconstitutional. In an opinion by Justice Byron White, the majority ruled that the boroughâs exclusion of live entertainment clearly violated the First Amendment. White wrote that ânude dancing is not without its First Amendment protections from official regulation.â The city had argued that the ordinance was merely a zoning regulation that did not target the content of expression and that the lawâs purpose was not to restrict expression but to avoid the problems associated with businesses that offer live entertainment, such as parking, trash and police protection. However, Justice White noted that other permitted businesses would cause these same problems. âWe do not find it self-evident that a theater, for example, would create greater parking problems than would a restaurant,â he wrote. Chief Justice William Burger and Justice Rehnquist dissented, finding that âa community of people are â within limits â masters of their own environment.â âCitizens should be free to choose to shape their community so that it embodies their conception of the âdecent life,ââ Burger wrote. The Schad ruling stands for the general principle that, while cities may zone adult businesses, they may not totally ban them. In three cases, the justices had stated in passing that nude dancing was entitled to some degree of First Amendment protection. The justices confirmed this in the 1991 decision Barnes v. Glen Theatre, Inc. Barnes concerned an Indiana law that criminalized public nudity and required dancers to wear G-strings and pasties. Even though the Court upheld the public nudity law, eight of the nine members recognized that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. A slender majority of the high court ruled against the dancers and the adult clubs. The five members of the majority wrote three separate opinions, making it difficult to understand the Courtâs ruling. Justices Rehnquist, Sandra Day OâConnor and Anthony Kennedy joined in a plurality opinion in Barnes. They recognized that ânude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.â They determined that requiring dancers to don G-strings and pasties was not a restriction on the First Amendment. They called it a âminimal restriction ⦠[that] leaves ample capacity to convey the dancerâs erotic message.â The plurality applied the OâBrien test and ruled that the government was justified in passing the public nudity law to protect the governmentâs interests in order and morality. They argued the law did not target erotic dancing but the âevilâ of âpublic nudity.â Justice Antonin Scalia said the law did not implicate the First Amendment but punished unlawful conduct; i.e., public nudity. He determined that the general law targeting public nudity was a generally applicable law that âis not subject to First Amendment scrutiny at all.â In a separate opinion, Justice David Souter, the other justice in the majority, also applied the OâBrien test but took a much different approach than the three-justice plurality. He based his decision on a concept called âsecondary effects,â which had grown out of adult-business zoning cases. The secondary-effects doctrine provides that government officials may regulate nude dancing as long as their reason for regulation is to combat harmful effects allegedly associated with adult businesses, such as increased crime or decreased property values. Souter reasoned that the nudity ban advanced the governmentâs interest in combating harmful secondary effects allegedly associated with adult businesses. Four justices â White, Marshall, Harry Blackmun and John Paul Stevens â dissented. They argued that the state had targeted exotic dancers because officials disliked nude dancing. âThat the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine,â Justice White wrote for the dissent. The four separate opinions in the 5-4 Barnes decision caused great confusion among the lower courts. One federal appeals court (in Triplett Grille, Inc. v. City of Akron, 1994) described trying to understand the case as âreading tea leaves.â Most lower courts, however, followed the reasoning of Justice Souter and used the secondary-effects rationale to regulate nude dancing. Other restraints on nude dancing Patron-performer buffer zones. Many municipalities have attempted to restrict contact between dancers and customers by establishing buffer zones. A few courts have upheld buffer zones of 10 feet, which eliminate table dances and lap dances. The 9th U.S. Circuit Court of Appeals upheld a 10-foot buffer zone between patron and performer in a Kent, Wash., ordinance. The club owners alleged that the buffer zone banned table dancing, which they argued was a unique form of expression. The appeals court in Colacurcio v. City of Kent (1998) said it would âleave the fine-tuning of the distance requirement to the legislative body.â The appeals court reasoned that the zone was a narrowly tailored way to prevent illegal sexual contact and drug transactions. The appeals court reasoned that the 10-foot requirement âdoes not rob dancers of their forum or their entire audience.â As to the club ownersâ arguments that table dancing is a unique form of expression, the court replied that âuniqueness alone is insufficient to trigger First Amendment protection.â Judge Stephen Reinhardt dissented, finding that table dancing was a unique form of expression compared to stage dancing. He reasoned that the club owners had presented enough evidence, including testimony from cultural anthropologist Hanna, that table dancing is âan altogether different form of expression that depends upon proximity and communicates a different and particular content.â A few courts have struck down patron-performer buffer zones as being too restrictive. A federal court in Texas struck down a 6-foot buffer zone in Wichita County, finding in LLEH, Inc. v. Wichita County, Texas (2000) that the purpose of the buffer zone was to drive the plaintiffs out of business. The court rejected the notion that the buffer zone was necessary to combat the transmission of drugs: âThe court finds absolutely no evidence to support a correlation between the drug trade and the six foot buffer requirement.â The court concluded that the countyâs interests in preventing illegal sexual contact could be satisfied by a 3-foot buffer. âA three-foot buffer zone would allow the Sheriffâs Department to easily and effectively enforce the no-touch rule without trampling on the protected message and/or expression of the dancers,â the court concluded in LLEH. However, in 2002 the 5th U.S. Circuit Court of Appeals reversed this ruling, finding that the 6-foot buffer zone was constitutional. The majority of courts have found likewise. Hanna says buffer zones substantially change the message conveyed by the dancer. She points out that âperformer-patron touch commonly occurs in the performing artsâ and that âmuch of contemporary theater has been breaking down barriers between spectator and performer.â The content of nude dancing. Some municipalities have gone so far as to censor the movements of exotic dancers. Many ordinances prohibit dancers from engaging in lewd or obscene activities. Some provisions go even further. For example, one Ohio administrative law prohibited dancers from committing âimproper conduct of any kind, type or character that would offend the publicâs sense of decency, sobriety or good order.â A federal judge struck down this provision, ruling in the 1999 case J.L. Spoons, Inc. v. OâConnor that it âgoes well beyond what is necessaryâ to further the stateâs interest in combating the harmful effects of adult businesses. The judge reasoned that this law would outlaw pop music superstar Michael Jacksonâs famous crotch grab. The judge also reasoned that this provision would give license to state agents to selectively punish certain dancers. A Wisconsin city passed a comprehensive ordinance regulating nearly all facets of adult businesses. One provision prohibited dancers from âappearing in a state of nudity or depicting specified sexual activities.â The ordinance defined these activities as: âthe fondling or erotic touching of human genitals, pubic region, buttocks, anus or female breasts.â The 7th U.S. Circuit Court of Appeals ruled that under Barnes and Pap's A.M., it was constitutional to prohibit totally nude dancing. But the appeals court said that banning specified sexual activities went too far. âBy restricting the particular movements and gestures of the erotic dancer, in addition to prohibiting full nudity, [the provision] unconstitutionally burdens protected expression,â said the 2000 ruling in Schultz v. City of Cumberland."
Photographer
dgold
Posts: 10302
Pawtucket, Rhode Island, US
D. Brian Nelson wrote:
Mija, it's what makes you wet thinking about it. -Don ...simple and says/does the trick. Taste is the enemy of Art-Picasso.
Photographer
Craig A McKenzie
Posts: 1767
Marine City, Michigan, US
Bob Randall Photography wrote: I ususlly follow these guide lines and then shoot accordingly. "By David L. Hudson Jr. First Amendment Center research attorney Supporters of the billion-dollar adult-entertainment industry argue that nude dancing contains the same elements of eroticism found in so-called âlegitimateâ theater and dance and therefore deserves no less First Amendment protection than those more mainstream forms of expression. City officials counter that adult businesses lead to crime and lower property values by debasing the quality of communities in which they locate; municipalities must be empowered to prevent blight and red-light districts, they say. City officials wield an array of restrictions that can be levied on adult businesses. These include restrictions on zoning, licensing, clothing, hours of operation and patron-performer buffer zones, to name just a few. When adult-club owners fight these regulations in the courts, cities are prone to pass new legislation, leading to more lawsuits and more regulations. The cycle has resulted in the development of a substantial body of First Amendment case law and doctrine, which serves to address the continuing tension between governmental efforts to regulate the adult-entertainment industry and the industryâs attempts to claim First Amendment protections. Even the U.S. Supreme Court has waded into the exotic-entertainment issue several times recently, with cases involving a Pennsylvania nude-dancing club, an adult-bookstore in Wisconsin and two adult bookstores in California. Many people do not understand why the removal of clothes by a dancer is a form of protected expression, but in fact the First Amendment protects many forms of controversial expression. A review of basic First Amendment principles and the history of erotic dance shows why the Supreme Court has ruled that regulation of nude dancing triggers First Amendment protections. The First Amendment protects far more than political speech and other verbal and nonverbal communication that many people may find objectionable. Nude dancing is one such type of expression. Basic First Amendment principles that relate to nude dancing: The First Amendment protects more than political speech and the expression of lofty ideas. The First Amendment protects not only verbal communication but also certain forms of symbolic or expressive conduct. The First Amendment protects expression that some people may find offensive or disagreeable. The First Amendment protects sexual expression as long as it does not meet the legal definition of obscenity. As recently as 2000, Justice Anthony Kennedy wrote in U.S. v. Playboy Entertainment Group that the âhistory of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.â Dancing: a form of expressive conduct Dance has roots in ancient history. The Greek poet Euripides described dance in the Bacchae. Aristotle wrote in the Poetics that the purpose of dance is âto represent menâs character as well as what they do and suffer.â The modern-day belly dance has been traced back to the Egyptians of the 4th century, and in ancient Rome, dancing was an integral part of the annual festivals Lupercalia and Saturnalia. âDance has biblical roots,â according to one federal appeals court judge who cited the passages in a 1990 case, Miller v. Civil City of South Bend: âLet them praise his name with dancing, making melody to him with timbrel and lyre!â (Psalms 149:3) and âPraise him with timbrel and danceâ (Psalms 150:4). According to Lucinda Jarrett, author of Stripping in Time: The History of Erotic Dancing, âthe censorious nature of Christianity has meant that sexual dance flourished in the East long before it emerged in Europe and Americaâ (p. 2). By the 19th century, however, Spanish gypsies were dancing the erotic flamenco in the cafes of Europe, and nude showgirls were performing in Parisian music halls, as David Cheshire has noted. Englandâs Windmill Theatre featured such shows as âMy Bare Lady,â âShe Strips to Conquerâ and âYes We Have No Pyjamas.â So-called âleg showsâ were introduced into the opera houses of the United States after the Civil War. Many Americans first witnessed Middle Eastern belly dancers at the 1893 Chicago Worldâs Columbian Exposition. Nude dancers graced the stage in Florenz Ziegfieldâs revues in New York City during the 1920s, and cheaper burlesque shows could be found at less glamorous locations. While many of the latter were raided, Jarrett reports, the so-called âlegitimateâ theater survived unscathed. The 1930s and â40s featured famous striptease artists such as Blaze Starr and Gypsy Rose Lee, and the â50s and â60s witnessed the growth of striptease acts and topless go-go dancers. According to dance expert and cultural anthropologist Judith Hanna, âthe 20th century placed the fully nude body into âhigh artâ theater dance â and moved exotic dance towards the mainstream.â Hanna, who has served as an expert witness in numerous adult-club cases, told firstamendmentcenter.org in an interview in March 2001 that ânude dancing in any kind of performance both reflects and configures a societyâs attitudes toward the body and its presentation.â She explained: âNudity in exotic dance communicates messages of freedom, independence, gender equality, acceptance of the body, modernity, historical tension between how the body was revealed in the past and is revealed now, empowerment, a break with social norms and challenge to the status quo.â The courts and nude dancing In early decisions, courts granted city officials broad discretion to prevent expressive activity that they considered lewd or indecent. However, some courts acknowledged that the process of determining whether or not something qualified as lewd was highly subjective. For example, in 1953 the future U.S. Supreme Court Justice Brennan wrote in an opinion for the New Jersey Supreme Court in Adams Theatre Co. v. Keenan: âThe standard âlewd and indecentâ is amorphous. ⦠There is ever present, too, the danger that censorship upon that ground is merely the expression of the censorâs own highly subjective view of morality unreasonably deviating from common notions of what is lewd and indecent, or may be a screen for reasons unrelated to moral standards.â In that decision, the New Jersey court ruled that Newark city officials had violated the First Amendment by denying a theater license to someone they feared would stage indecent burlesque shows. The court reasoned that the performance of a burlesque show was a form of speech entitled to protection under the federal and state constitutions. In the late 1960s, a few courts began to recognize that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. In its 1968 decision in In re Giannini, the California Supreme Court ruled that nude dancing was âpotentially a form of communication protected against state intrusion by the guarantees of the First Amendment.â The California high court quoted the definitions of dance listed in the Encyclopedia Britannica and the Century Dictionary, noting that âthe very definition of dance describes it as an expression of emotions or ideas.â The case that prompted this decision involved topless dancer Kelley Iser and Albert Giannini, owner of the nightclub where she danced. The two had been charged and convicted of willful and lewd exposure. Under state law, lewd conduct was considered obscene. Giannini and Iser appealed their convictions, arguing that the dancing was a form of expression protected by the First Amendment. The state attorney general who argued against their position maintained that topless dancing has no social value and is obscene. In deciding for the dancer and club owner, the California court noted that the First Amendment protects more than political speech. âThus, the First Amendment cannot be constricted into a straitjacket of protection for political expression alone,â the court wrote in In re Giannini. âIts embrace extends to all forms of communication, including the highest: the work of art.â The First Amendment applies to many different communications media, including motion pictures and various other types of entertainment, said the court, which reasoned that Iserâs dance, no matter how vulgar, communicated a message to her audience. The final question for the court was whether Iserâs dance constituted obscenity. The court threw out the convictions because the prosecution failed to introduce evidence about community standards, a factor that the U.S. Supreme Court had emphasized since its 1957 obscenity opinion Roth v. United States. âTo sanction convictions without expert evidence of community standards encourages the jury to condemn as obscene such conduct or material as is personally distasteful or offensive to the particular juror,â the California court wrote in In re Giannini. U.S. Supreme Court on nude dancing The U.S. Supreme Court initially addressed the issue of First Amendment protection for nude dancing in its 1972 decision California v. LaRue. In 1970 Californiaâs Department of Alcohol Beverage Control had issued rules regulating the type of live entertainment that could occur in businesses serving alcohol. The department was concerned by an increase in topless and bottomless dancing at bars. According to the department, increasing incidents of sexual misconduct (including prostitution and public masturbation) were being reported at many of these businesses. The regulations prohibited certain activities at bars serving alcohol, including: The performance of acts or simulated acts of intercourse, masturbation âor any sexual acts which are prohibited by law.â The actual or simulated touching of the breast, buttocks, anus or genitals. The public display of the pubic hair, anus or genitals. The showing of any films or pictures which feature the above-mentioned activities. When local bar owners challenged the constitutionality of the regulations, the state argued that the rules were necessary to prevent sex crimes, prostitution and drug abuse. The Supreme Court ruled 6-3 in favor of the regulations. Writing for the majority, Justice William Rehnquist noted that under the 21st Amendment, the states had broad power to regulate the distribution of alcohol within their borders. He did, however, hint that some of the dancing in the clubs merited constitutional protection when he wrote that âat least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression.â Justice William Brennan authored a short dissenting opinion in California v. LaRue, writing that the California regulations clearly applied to some expression deserving of First Amendment protection. Justice Thurgood Marshall wrote a lengthier dissent, finding that the state of California could not regulate sexual performances unless they qualified as obscene. He wrote that âthe empirical link between sex-related entertainment and the criminal activity popularly associated with it has never been proven and, indeed, has now been largely discredited.â Marshall also pointed out that the state could punish sex crimes and drug use directly, rather than engage in a âbroadscale attack on First Amendment freedoms.â The Supreme Court in its 1975 decision Doran v. Salem Inn again hinted that at least some nude dancing merits a degree of First Amendment protection. The case grew out of an ordinance passed by the town of North Hempstead, N.Y., that prohibited waitresses, barmaids and entertainers from exposing their breasts in public. The Court ruled that a lower federal court had not abused its discretion in granting several bars a preliminary injunction prohibiting the town from enforcing its anti-nudity ordinance. Again writing for the Court, Justice Rehnquist noted: âAlthough the customary âbarroomâ type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.â Rehnquist distinguished the North Hempstead ordinance in Doran v. Salem Inn from the California regulations in LaRue by noting that the town ordinance applied to nudity in any public place, not just in liquor establishments. He also quoted with approval the lower court judgeâs warning that the townâs anti-nudity law could apply to âthe performance of the âBallet Africainsâ and a number of other works of unquestionable artistic and socially redeeming significance.â The Court next addressed the constitutionality of restrictions upon nude dancing in its 1981 decision Schad v. Borough of Mount Ephraim. The town of Mount Ephraim, N.J., had passed an ordinance prohibiting all live entertainment within its borders. An adult bookstore was charged with violating the ordinance after it began offering live nude dancing in coin-operated booths. The bookstore challenged the constitutionality of the ordinance, arguing that the banning of non-obscene nude dancing violated free-expression rights. The Supreme Court ruled 7-2 that the ordinance was unconstitutional. In an opinion by Justice Byron White, the majority ruled that the boroughâs exclusion of live entertainment clearly violated the First Amendment. White wrote that ânude dancing is not without its First Amendment protections from official regulation.â The city had argued that the ordinance was merely a zoning regulation that did not target the content of expression and that the lawâs purpose was not to restrict expression but to avoid the problems associated with businesses that offer live entertainment, such as parking, trash and police protection. However, Justice White noted that other permitted businesses would cause these same problems. âWe do not find it self-evident that a theater, for example, would create greater parking problems than would a restaurant,â he wrote. Chief Justice William Burger and Justice Rehnquist dissented, finding that âa community of people are â within limits â masters of their own environment.â âCitizens should be free to choose to shape their community so that it embodies their conception of the âdecent life,ââ Burger wrote. The Schad ruling stands for the general principle that, while cities may zone adult businesses, they may not totally ban them. In three cases, the justices had stated in passing that nude dancing was entitled to some degree of First Amendment protection. The justices confirmed this in the 1991 decision Barnes v. Glen Theatre, Inc. Barnes concerned an Indiana law that criminalized public nudity and required dancers to wear G-strings and pasties. Even though the Court upheld the public nudity law, eight of the nine members recognized that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. A slender majority of the high court ruled against the dancers and the adult clubs. The five members of the majority wrote three separate opinions, making it difficult to understand the Courtâs ruling. Justices Rehnquist, Sandra Day OâConnor and Anthony Kennedy joined in a plurality opinion in Barnes. They recognized that ânude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.â They determined that requiring dancers to don G-strings and pasties was not a restriction on the First Amendment. They called it a âminimal restriction ⦠[that] leaves ample capacity to convey the dancerâs erotic message.â The plurality applied the OâBrien test and ruled that the government was justified in passing the public nudity law to protect the governmentâs interests in order and morality. They argued the law did not target erotic dancing but the âevilâ of âpublic nudity.â Justice Antonin Scalia said the law did not implicate the First Amendment but punished unlawful conduct; i.e., public nudity. He determined that the general law targeting public nudity was a generally applicable law that âis not subject to First Amendment scrutiny at all.â In a separate opinion, Justice David Souter, the other justice in the majority, also applied the OâBrien test but took a much different approach than the three-justice plurality. He based his decision on a concept called âsecondary effects,â which had grown out of adult-business zoning cases. The secondary-effects doctrine provides that government officials may regulate nude dancing as long as their reason for regulation is to combat harmful effects allegedly associated with adult businesses, such as increased crime or decreased property values. Souter reasoned that the nudity ban advanced the governmentâs interest in combating harmful secondary effects allegedly associated with adult businesses. Four justices â White, Marshall, Harry Blackmun and John Paul Stevens â dissented. They argued that the state had targeted exotic dancers because officials disliked nude dancing. âThat the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine,â Justice White wrote for the dissent. The four separate opinions in the 5-4 Barnes decision caused great confusion among the lower courts. One federal appeals court (in Triplett Grille, Inc. v. City of Akron, 1994) described trying to understand the case as âreading tea leaves.â Most lower courts, however, followed the reasoning of Justice Souter and used the secondary-effects rationale to regulate nude dancing. Other restraints on nude dancing Patron-performer buffer zones. Many municipalities have attempted to restrict contact between dancers and customers by establishing buffer zones. A few courts have upheld buffer zones of 10 feet, which eliminate table dances and lap dances. The 9th U.S. Circuit Court of Appeals upheld a 10-foot buffer zone between patron and performer in a Kent, Wash., ordinance. The club owners alleged that the buffer zone banned table dancing, which they argued was a unique form of expression. The appeals court in Colacurcio v. City of Kent (1998) said it would âleave the fine-tuning of the distance requirement to the legislative body.â The appeals court reasoned that the zone was a narrowly tailored way to prevent illegal sexual contact and drug transactions. The appeals court reasoned that the 10-foot requirement âdoes not rob dancers of their forum or their entire audience.â As to the club ownersâ arguments that table dancing is a unique form of expression, the court replied that âuniqueness alone is insufficient to trigger First Amendment protection.â Judge Stephen Reinhardt dissented, finding that table dancing was a unique form of expression compared to stage dancing. He reasoned that the club owners had presented enough evidence, including testimony from cultural anthropologist Hanna, that table dancing is âan altogether different form of expression that depends upon proximity and communicates a different and particular content.â A few courts have struck down patron-performer buffer zones as being too restrictive. A federal court in Texas struck down a 6-foot buffer zone in Wichita County, finding in LLEH, Inc. v. Wichita County, Texas (2000) that the purpose of the buffer zone was to drive the plaintiffs out of business. The court rejected the notion that the buffer zone was necessary to combat the transmission of drugs: âThe court finds absolutely no evidence to support a correlation between the drug trade and the six foot buffer requirement.â The court concluded that the countyâs interests in preventing illegal sexual contact could be satisfied by a 3-foot buffer. âA three-foot buffer zone would allow the Sheriffâs Department to easily and effectively enforce the no-touch rule without trampling on the protected message and/or expression of the dancers,â the court concluded in LLEH. However, in 2002 the 5th U.S. Circuit Court of Appeals reversed this ruling, finding that the 6-foot buffer zone was constitutional. The majority of courts have found likewise. Hanna says buffer zones substantially change the message conveyed by the dancer. She points out that âperformer-patron touch commonly occurs in the performing artsâ and that âmuch of contemporary theater has been breaking down barriers between spectator and performer.â The content of nude dancing. Some municipalities have gone so far as to censor the movements of exotic dancers. Many ordinances prohibit dancers from engaging in lewd or obscene activities. Some provisions go even further. For example, one Ohio administrative law prohibited dancers from committing âimproper conduct of any kind, type or character that would offend the publicâs sense of decency, sobriety or good order.â A federal judge struck down this provision, ruling in the 1999 case J.L. Spoons, Inc. v. OâConnor that it âgoes well beyond what is necessaryâ to further the stateâs interest in combating the harmful effects of adult businesses. The judge reasoned that this law would outlaw pop music superstar Michael Jacksonâs famous crotch grab. The judge also reasoned that this provision would give license to state agents to selectively punish certain dancers. A Wisconsin city passed a comprehensive ordinance regulating nearly all facets of adult businesses. One provision prohibited dancers from âappearing in a state of nudity or depicting specified sexual activities.â The ordinance defined these activities as: âthe fondling or erotic touching of human genitals, pubic region, buttocks, anus or female breasts.â The 7th U.S. Circuit Court of Appeals ruled that under Barnes and Pap's A.M., it was constitutional to prohibit totally nude dancing. But the appeals court said that banning specified sexual activities went too far. âBy restricting the particular movements and gestures of the erotic dancer, in addition to prohibiting full nudity, [the provision] unconstitutionally burdens protected expression,â said the 2000 ruling in Schultz v. City of Cumberland." Can't you just paraphrase it? This is way too scholarly of a read for me when I want to have fun on MM...
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