By Madison Gray, J.D.
Social dancing — in nightclubs or raves or country-Western clubs — might seem the very sort of behavior that the First Amendment would protect. Logically, joining with others to dance for fun involves expressing one’s personal style and associating with other dancers. Legally, however, the Supreme Court removed social dancing from First Amendment protection in its 1989 decision City of Dallas v. Stanglin. As a result, opponents of social-dance restrictions find themselves in the illogical situation of having no First Amendment ground on which to challenge government restriction of an inherently expressive and associative activity.
NYC’s dance police
Recent developments involving New York City’s infamous cabaret laws, which regulate social dancing in nightclubs through a licensing provision, have renewed attention on the role of social dancing in modern American culture. On Nov. 20, 2003, Gretchen Dykstra, commissioner of the city’s Department of Consumer Affairs, announced in a press conference held at a Tribeca nightclub that “the dance police no longer exist” as she unveiled a proposal to replace the cabaret licenses with a new nightlife license. The New York Nightlife Association mounted vocal opposition, characterizing the proposed nightlife-licensing scheme as an overboard expansion of the city’s regulatory authority with regards to nightlife that would effectively require large numbers of establishments to close at 1 a.m. After several months of tension over the issue, Mayor Michael Bloomberg said on Feb. 11, 2004, that his administration would not seek to amend or replace the cabaret-licensing laws “this year.” He also said, “The city should not be in the business of deciding what goes on, whether there’s dancing or not.” With that, the proposed legislative solution to the “dance police” was set aside.
Rooted in the Prohibition Era, the 1926 cabaret laws require any nightlife establishment that wishes to host social dancing to hold a city-issued cabaret license. Cabaret licenses, however, are not available in many parts of the city because of zoning laws that exclude cabarets. In 1988, the aspects of the cabaret license involving live musical performances were held unconstitutional on free-expression grounds by a state court in Chiasson v. New York City Dept. of Consumer Affairs. Dancing advocates, like Legalize Dancing NYC and the Dance Liberation Front, argue that the remaining cabaret-licensing and zoning restrictions on social dancing also violate First Amendment rights of expression and association. An attempt at a solution based in First Amendment litigation, however, does not seem possible because the U.S. Supreme Court does not extend First Amendment protection to social dancing.
The controlling U.S. Supreme Court precedent involving social dancing and First Amendment freedoms is City of Dallas v. Stanglin. The case involved a city ordinance regarding a type of dance-hall license that restricted admission to teens between the ages of 14 and 18, and limited hours of operation. The ordinance was challenged as a violation of the First Amendment and the equal-protection clause of the 14th Amendment by the owner of an establishment that was half roller rink and half dance hall under the licensing restrictions in question. Although the trial court upheld the ordinance, the Texas Court of Appeals found that the age restrictions violated the First Amendment associational rights of minors. The U.S. Supreme Court reversed.
First Amendment holding
In its 1984 decision Roberts v. U.S. Jaycees, the Court identified two types of “freedom of association” with constitutional protection — intimate association (“intimate human relations”) and expressive association (“engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion”). In applying Roberts to Stanglin, the Court found that the age limitation of the ordinance did not affect either intimate association or expressive association: “The opportunities (for minors to dance with adults) might be described as ‘associational’ in common parlance, but they simply do not involve the sort of expressive association that the First Amendment has been held to protect.” The Court also noted that the teenagers are “strangers to one another” and “pay the admission fee.”
The Court relied on its 1987 ruling Board of Directors of Rotary International v. Rotary Club of Duarte for its description of activities that would fall under First Amendment protection. The Court found “no suggestion that these patrons ‘take positions on public questions’ or perform any of the other similar activities described in [Board of Directors of Rotary International].”
The Court relied on three cases in its First Amendment analysis of Stanglin: Roberts v. U.S. Jaycees, Board of Directors of Rotary International v. Rotary Club of Duarte, and Griswold v. Connecticut.
At the heart of the Stanglin decision is the Court’s effort to distinguish activity from meaningful activity:
“It is possible to find some kernel of expression in every activity a person undertakes — for example, walking down the street or meeting one’s friends at a shopping mall — but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons — coming together to engage in recreational dancing — is not protected by the First Amendment.”
The Court then corrected the lower court’s application of its 1965 decision Griswold v. Connecticut and rejected the concept of a right to generic social association:
“[W]e do not think the Constitution recognizes a generalized right of ‘social association’ that includes chance encounters in dance halls. … Griswold recognizes nothing more than that the right of expressive association extends to groups organized to engage in speech that does not pertain directly to politics.”
In short, the Court found that the government interest in the welfare of teenagers was rationally related to the age restriction of the ordinance. Thus, the ordinance survived rational-basis scrutiny under equal-protection analysis.
Descendants of Stanglin
Stanglin has been cited by the U.S. Supreme Court in seven cases. Of those seven, only Barnes v. Glen Theatre Inc. (1991) involved dancing, although a type of dancing distinct from social dancing. Barnes involved a First Amendment challenge to Indiana’s public indecency statute by nude-dancing establishments. The Supreme Court upheld the statute’s requirement that dancers wear both pasties and G-strings. In its First Amendment analysis the Court found the government’s interest in preventing public nudity was sufficiently important to justify the regulation of the non-speech element of the expressive conduct, i.e., the dancing.
During the First Amendment analysis, the Court pointed to Stanglin in its rejection of an “expansive notion” of expressive conduct that would include “almost limitless types of conduct.”
Justice Antonin Scalia, in a footnote to his concurring opinion, makes reference to Stanglin as he admits to being uncertain about where dancing would fall in the expressive conduct continuum:
“It is easy to conclude that conduct has been forbidden because of its communicative attributes when the conduct in question is what the Court has called ‘inherently expressive,’ and what I would prefer to call ‘conventionally expressive’ — such as flying a red flag. I mean by that phrase (as I assume the Court means by ‘inherently expressive’) conduct that is normally engaged in for the purpose of communicating an idea, or perhaps an emotion, to someone else. I am not sure whether dancing fits that description, see Dallas v. Stanglin, 490 U.S. 19, 24, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989) (social dance group ‘do[es] not involve the sort of expressive association that the First Amendment has been held to protect’). But even if it does, this law is directed against nudity, not dancing. Nudity is not normally engaged in for the purpose of communicating an idea or an emotion.”
Justice David Souter, in his concurrence, goes further than Scalia with regards to the status of types of dancing under First Amendment analysis:
“Not all dancing is entitled to First Amendment protection as expressive activity. This Court has previously categorized ballroom dancing as beyond the Amendment’s protection, Dallas v. Stanglin, 490 U.S. 19, 24-25, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989), and dancing as aerobic exercise would likewise be outside the First Amendment’s concern. But dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. … Although such performance dancing is inherently expressive, nudity per se is not.”
Glimmer of rebellion quickly extinguished
Post-Stanglin, courts have applied with ease the concept that social dancing lies outside the First Amendment. In only one instance has the wisdom of Stanglin been questioned in a case involving a First Amendment analysis and social dancing. Surprisingly, a magistrate in the initial consideration of the case demonstrated a willingness to recommend sidestepping the precedent of Stanglin — Willis v. Town of Marshall (W.D.N.C. June 20, 2003). Willis involved a challenge on both expression and association grounds to the banning of an individual from town dances because of the particular way in which she danced. The magistrate’s recommendation, however, was neither followed nor mentioned in the subsequent opinion, Willis v. Town of Marshall (W.D.N.C. November 25, 2003), written by a federal district judge who strictly followed Stanglin.
Paul Chevigny’s paper “Social Dancing and Social Association” appears to be the only focused analysis of the expressive nature of social dancing and its place in First Amendment law. He also offers a broader discussion of social association and the law. With regard to the current status of social dancing and the First Amendment, Chevigny concludes: “Musical performances, like other artistic performances, are protected under the First Amendment, but social dancing is not.”
That said, he emphasizes that the Court has been careful to protect “even minimal elements of expression in performance” and points to Justice Souter’s concurrence (see quote in previous section) in Barnes as presenting the “well-established” distinction between social dancing and performance dancing.
Chevigny notes that Stanglin “is an awkward [case] for distinguishing ‘social’ from ‘expressive’ association” because there is “a great deal that is expressive in social dancing.” But, he also characterizes social dancing as “expressively distinct from a performance.”
With regards to the Court’s intent in Stanglin and Stanglin‘s aftermath, Chevigny writes:
“The Court was interested in the case as a place to rule on the limits of freedom of association under the federal Constitution, and in the process to suggest where the concept of ‘expression’ begins to run out for the First Amendment. The way the opinion is written, its effect might have been limited to dance-halls, but that is not the way it has turned out. The ruling has been applied in a number of succeeding cases, although only once more, so far as I can tell to social dancing. In Chicago v. Morales, 527 U.S. 41 (1999), although the Supreme Court struck down a gang-loitering ordinance on grounds of vagueness, Stanglin enabled the court to dispose of the freedom of association objection in a single sentence. … The decision has been used to justify refusals to permit the continuation of various sorts of clubs …The case has emerged as a justification for juvenile curfews, against the claim that the teenagers had a right to be out in the streets associating with one another.”
In conclusion, analysis of case law in the aftermath of Stanglin reveals a systematic acceptance within formal First Amendment analysis that social dancing is protected neither as association, nor as expression. Logical, no. Legal, yes.
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