Kevin Case


Nude dancing is a particularly awkward fit with the First Amendment. Should the Constitution protect this kind of "speech?" The question has vexed the Supreme Court. While most of the Court has agreed that nude dancing falls within the First Amendment, plurality opinions relegate nude dancing to the "outer ambit" of shielded speech, setting forth confusing and ultimately unsustainable legal tests.

This Note contends that nude dancing can convey powerful and particularized erotic messages of sexual desire, availability, and appreciation of the nude female form. It is not mere "conduct." Moreover, arguments for categorizing nude dancing as "low value" speech, such as those grounded in morality or aesthetics, fail to provide a principled basis for affording nude dancing lesser protection than is given to other types of expressive activity. This Note thus concludes that nude dancing should receive full First Amendment protection, and that attempts to regulate it should receive no lesser degree of Constitutional scrutiny.

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