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Utah appeals court rejects First Amendment challenge to dance-license law

David Hudson
First Amendment Center

A Salt Lake City ordinance that requires professional dancers to obtain a license before dancing in establishments that serve alcohol does not violate the First Amendment, a Utah appeals court has ruled in a 2-1 decision.

In November 1997, 18-year-old Jennifer Wood was cited for dancing onstage at Runway 69 without a license. Another provision of the law prohibits those under the age of 21 from obtaining a dance license.

Woods argued that the ordinance violated her First Amendment free-expression rights. She argued that the ordinance should be subject to the highest form of judicial review, called "strict scrutiny."

However, the Court of Appeals of Utah in Salt Lake City v. Wood determined that the law did not restrict dance based on content and, thus, was subject to a less rigorous form of judicial review.

The appeals court examined the law under the less stringent intermediate-scrutiny test, as set forth by the 1968 U.S. Supreme Court decision United States v. O'Brien. Under the O'Brien test, a government regulation is constitutional if:

  • It is within the constitutional power of the government.
  • It furthers an important or substantial governmental interest.
  • The governmental interest is unrelated to the suppression of free expression.
  • The incidental restriction on First Amendment freedoms is no greater than is essential to furtherance of that interest.

Wood argued that the licensing ordinance, while within the constitutional power of the government, did not further an important governmental interest. The city — and ultimately the court — disagreed.

"The license requirement here furthers important and substantial governmental interests, such as preserving societal order and morality and protecting the dancers themselves (especially minors)," the court wrote in its Nov. 4 opinion.

The appeals court also determined that the licensing law was unrelated to the suppression of free expression.

"The license requirement does not prohibit expression, nor does it dictate or interfere with the content of the dance," wrote the court. "Presumably, the dancer can present whatever message she or he intends to convey, so long as she or he first obtains a license."

The appeals court also determined that the law was not more extensive than necessary to further the important governmental interests. The court said the ordinance would not prohibit any expression that constitutes entertainment but would only regulate professional dance.

The appeals court concluded: "The license requirement does not violate the freedom of expression guaranteed by the First Amendment. It is a content-neutral time, place and manner restriction tailored to meet legitimate objectives."

Judge Gregory Orme dissented, finding that the ordinance would restrict far more expression than necessary. Orme pointed out that the city already had a detailed ordinance regarding sexually oriented businesses (called the "SOB ordinance").

Orme pointed out that the anti-dancing ordinance challenged by Wood would apply in ridiculous situations. "Accordingly, the ordinance is apparently violated anytime a junior drill team performs a half-time show at the Delta Center during a Jazz or Starzz game."

"High school students may not perform traditional Greek dances at the Grecian Garden Restaurant," Orme wrote.

"At best, the City has spotted a small pest that eludes the net of its SOB ordinance, and it has gone after it with an elephant gun when a flyswatter would do," Orme wrote.

"If the city needs to prohibit persons under twenty-one from certain types of dance performances not covered by its SOB ordinance in order to better accomplish the purposes which underlie that ordinance, it will have to devise something considerably narrower than an outright ban on all dancing in such establishments," Orme concluded.

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