Tuesday, June 10, 2003

Virginia court of appeals rules that strippers' rights were violated

In Boyd v. County of Henrico, a split panel of the Virginia Court of Appeals in an opinion by Chief Judge Fitzpatrick overturned convictions for public nudity and "aiding and abetting" public nudity, concluding that the county ordinance was unconstitutionally vague, where "neither the Commonwealth's Attorney nor the police were able to clearly delineate what would constitute a violation of the ordinance or at least what they would prosecute as a violation" and "the legislative intent underlying the ordinance was to prevent urinating in public and similar problems."

Judge Kelsey dissented, in an opinion that includes this paragraph:

"It has been the traditional view that whatever natural law construct exists to support the "right to appear au naturel at home," that right is "relinquished when one sets foot outside." Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir. 1970). Even so, in the "outer ambit" of constitutional theory, the erotic speech component of a particular form of public nakedness -- nude dancing at strip clubs -- receives "some measure" of First Amendment protection. Erie v. Pap's A.M., 529 U.S. 277, 285, 289 (2000); see also Barnes, 501 U.S. at 566. The right, however, is hardly a robust one. At best, it receives a "diminished form of protection under the First Amendment," Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702, 707 (7th Cir. 2003), because it involves the "barest minimum of protected expression," Barnes, 501 U.S. at 565. Put another way, the right is only "marginally" within the "outer perimeters" of the First Amendment. Barnes, 501 U.S. at 566."

The AP has this report on the case.

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