Laws Regulating Strip Clubs

The First Amendment, its implications, and its uses have been hot-button topics throughout the course of the semester, and studies by individual groups highlighted facets of the oft-challenged part of the Bill of Rights. One component of the First Amendment pertinent to 21st-century Peoria is that of free expression in the form of symbolic speech, specifically as it pertains to Peoria’s adult entertainment industry. Bradley University Professor of Political Science Craig Curtis said, as a whole, the citizenry of Peoria are apt to think of laws regulating strippers as measures to protect family values and prevent neighborhood degradation when in reality “exotic dancing is protected by the First Amendment” (personal interview, Nov. 8, 2005).

These “silicone viewing opportunities” (Craig Curtis, personal interview, Nov. 8, 2005) are considered symbolic speech, but are also accused of creating specific secondary effects that make the industry unattractive to communities. The constitutionality of stripping and nude dancing has been fought and re-fought repeatedly in every level of court, and copious United States Supreme Court decisions exist, both upholding and denying the First Amendment-relevance of aspects of the act. Furthermore, it is a fight cabaret owners and community values activists are currently fighting on the stripper poles of Peoria and other cities across the country.

Symbolic Speech

While freedom of speech is the most readily identifiable part of the First Amendment, with 63 percent of those poled able to identify it (First Amendment Center, 2005), people often forget there is more to speech than just spoken words (Craig Curtis, personal interview, Nov. 8, 2005). Speech also includes expression, or symbolic speech. Key to any argument about any laws regarding symbolic speech is the O’Brien test, established by the United States Supreme Court in the case of United States v. O’Brien. The O’Brien test states:

The regulation must 1) be within the constitutional power of the government to enact, 2) further an important or substantial government interest, 3) that interest must be unrelated to the suppression of speech (or “content neutral”, as later cases have phrased it) and 4) prohibit no more speech no more than is essential to further that interest. (United States v. O’Brien)

Throughout subsequent United States Supreme Court cases, this test was applied to any free expression cases, including those concerning nude dancing. In several cases, however, both concurring and dissenting judges used the O’Brien test to justify their opinions.

The Adult-Entertainment Industry and Freedom of Expression

The adult-entertainment industry as a whole is worth about $1 billion per year. It also ties up millions of dollars worth of tax-payer dollars each year as communities both sue and are sued over the industry’s First Amendment rights. The First Amendment relates to nude dancing in particular on several grounds, as related by Hudson – including protections for expressions some may find disagreeable or offensive and sexual expression not legally obscene (2005).

Adult businesses often targeted by municipal ordinances include adult arcades; adult book, novelty or video stores; adult cabarets, night clubs, gentlemen’s clubs, go-go clubs or strip clubs; adult hotels or motels; and adult motion picture theaters or adult theaters. A broader definition is, borrowing from United States Supreme Court cases is stated on the Citizens for Community Values Web site:

A sexually oriented business is one that has as one of its principal business purposes or primary purpose or has a substantial or significant portion of its business stock in trade of activities relating to specified anatomical areas or specified sexual activities. (What is a Sexually Oriented Business?, paragraph 1)

While cities cannot directly censor the activities that take place at these places of business, they can impose restrictions on hours of operation, clothing, licensing (especially liquor), zoning, patron-performer buffers and more. Club owners often fight these laws in court, which often leads to more regulations, creating a costly spiral of legislation and lawsuits (Hudson, 2005). Adult-entertainment advocates also say allowing strip clubs to operate legally fewer restrictions keeps both the customers and the dancers on the right side of the law and of conventional moral values. For example, in 2002, Clark County, Nevada, officials approved strict lap-dance laws that applied only to businesses in the parts of the county not part of the city of Las Vegas. Part of the ordinance prohibited liquor-license-holding clubs from employing anyone younger than 21 years of age. Dancers in the affected clubs said barring them from topless-only, liquor-serving bars would only encourage them to seek employment as fully nude clubs, which cannot serve booze in Las Vegas (Ritter, 2002).

The dancing itself is argued by the industry as being little more erotic than legitimate theater and claims a history in the West as far back as the 19th century and even farther back in the East. In the West the dancing has evolved with society from French nude showgirls to famed striptease artist Gypsy Rose Lee to topless go-go dancers to its current mix of nude and semi-nude varieties. Along with the dancing come activities some find lewd or obscene, such as table dances and lap dances (Hudson, 2005). Lap dances have proven a point of contention in some court cases and can be classed as conduct, not expression, and the contact between the dancer and the patron brings to light the question of sale of sexual services (Ritter, 2002).
Adult Entertainment and Zoning Ordinances

Zoning is the most prevalent tool for communities to control adult entertainment venues as they try to focus the businesses in less-developed areas of the municipalities or try to block them completely (Rosen, 2005; Brundrett, 2000). Zoning laws, however, still can backfire or be overturned on basis of First Amendment violations. Some cities regulate how far adult businesses must be from churches and schools (Abels, 2003), others classify areas as “adult zones” (Brundrett, 2000; Gonzales, 2005) and still others only allow the adult businesses in areas zoned for industrial uses, so as to keep the ventures away from residential and mainstream business sectors (Rosen, 2005). The zoning ordinances risk upsetting not only owners and potential owners of the adult businesses, but also those who already own property in areas zoned for the sex business (Abels, 2003). Moreover, if these restrictions are deemed too restrictive (i.e., leaves very few or no sites for an adult business to open), owners of the adult businesses can sue the municipality for not providing a place for it to occupy, which opens the city up to potential court rulings allowing the owners to open a business wherever they please (Abels, 2003). Again, these court battles are costly and unpredictable, both for the owners and for the cities.

Businesses that are only marginally adult, such as mainstream video stores that offer a selection of XXX videos, can fall prey to zoning laws, as well. Some towns, such as Columbia, South Carolina, had laws on the books as recently as 2000 classifying a business as sexually oriented if it sold or rented even one movie containing sexually explicit material. Under that ordinance, even the local Target and Wal-Mart could be considered sexually oriented if they sold, for instance, a copy of the movie “Titanic” (Brundrett, 2000).

Zoning laws also become tricky when existing businesses are “grandfathered” in, meaning they do not have to comply with the new laws. For individual businesses, this can be a good thing amounting to a monopoly on the skin scene, but as a whole, it gives the owners fewer understanding parties with which they can commiserate. Existing clubs and businesses can also be grandfathered in for things such as liquor licenses in places where full nudity is allowed (Rosen, 2005).

Another tactic used by cities to limit or eliminate adult businesses is the moratorium, or suspension of activity. The city can place a moratorium on processing new strip-club applications or on the ventures in general (Gonzales, 2005; Lewis, 2005). Sometimes the moratoriums are issued to buy the city time to get zoning laws in place, but other times the delay can be abused by the city, as was the case in Seattle until this year. Seattle’s moratorium, originally put in place to allow the city to craft land-use ordinances, lasted for 17 years and was declared in violation of the First Amendment in September 2005 by a federal judge (Lewis, 2005).
Secondary Effects

Often community values activists’ strongest arguments against adult businesses are the secondary effects of the ventures. Activists’ lists of grievances can include parking, trash, need for increased police presence, increased crime, decreased property value, prostitution, drug prevalence, increased drunken driving, noise pollution, underage drinking and myriad other detriments (Hudson, 2005; Brandert, 2005; Hopkins, 2005; McKenzie, 2005). Reports detailing the existence or lack of these effects in communities are often deciding factors in court cases, as explained in the next section. Over the years, these cases created a “secondary-effects doctrine” that allows governments to regulate the free exercise of nude dancing to combat these harmful effects (Hudson, 2005).

Another secondary effect is the advertising for these adult services. Several communities have laws on the books regulating how and where a sexually oriented business can tout its wares (Margolies, 2004; Associated Press, 2005; Franklin, 2005). Some ban billboards within specific distances of certain landmarks; others take offense at the club’s actual signage. A Missouri law bans sexually oriented billboards on state highways; a move the governor said would help reduce crime and other negative effects of the sex business. The law, currently pending in appeals court, looked to set standards with respect to what is suitable for minors. (Margolies, 2004). Las Vegas barred all handbilling, including that for strippers and escorts, several years ago to try to shake its unwanted seedy image (Franklin, 2005). This summer in Los Angeles, a strip club near Los Angeles International Airport touted its wares with a sign reading “Vaginas R’ Us.” Rather than pursue the sign with any sort of attack, which could be found unconstitutional, a LA business association contacted Toys R Us, a company notorious for defending its trademark, and the toy giant promised action against the club (Associated Press, 2005). Still, these forms of advertising alert those who may not be familiar with the area to the presence of such businesses, a right owners feel they deserve.

A problem with secondary effects is an inherent difficulty in proving it is, in fact, the adult business that causes these problems. If the business is surrounded by, for instance, mainstream bars, some of the effects overlap. Furthermore, a mainstream bar by itself is apt to produce a few of these secondary effects without the nudity, thus imposing a double standard on any bars in question.

Court Cases

As mentioned, adult entertainment and courts at all levels have crossed paths repeatedly. Most notably, the United States Supreme Court has ruled diversely on the rights of adult entertainment as related to the First Amendment, and in some cases, it splintered at first contact with public nudity and its constitutionality. The problem with these fractured decisions is they fail to set precedence and can be inaccurately construed by both lawmakers and lower courts (Brogdon, 2003).

California v. LaRue (1972)

The California Department of Alcoholic Beverage Control outlawed the showing of adult materials, including nude or topless dancing, in licensed nightclubs and bars as a precaution against secondary effects such as prostitution, rape, indecent exposure, and assaults on police officers were happening in or in close proximity to the liquor-licensed businesses. Various club owners and dancers filed a suit with the United States District Court for the Central District of California, which found the California Department of Alcohol Beverage Control’s actions unconstitutional, citing rights guaranteed by both the First and Fourteenth Amendments. The United States Supreme Court reversed the opinion, 6-3, citing the Twenty-first Amendment and the states’ broad authority to control intoxicating liquors, though it did acknowledge some of the activities taking place at the clubs were protected by the First and Fourteenth Amendments.

Young v. American Mini Theatres, Inc. (1976)

Two adult movie theater owners instituted actions against Detroit, Michigan, officials over zoning and licensing laws pertaining to adult businesses. The District Court upheld the ordinances, and the United States Court of Appeals for the Sixth Circuit reversed the District Court’s decision, decrying the laws as prior restraint on free speech. The United States Supreme Court reversed the Sixth Circuit, 5-4, citing, among other things, the city’s right to plan and regulate usage of property for commercial purposes as not prohibiting free speech. The court also alluded to the city’s right to protect its neighborhoods from degradation.

Renton v. Playtime Theatres, Inc. (1985-86)

Again, two adult movie theater owners filed for relief from zoning ordinances because of First and Fourteenth Amendment violations, this time from the United States District Court for the Western District of Washington. Again, the District Court ruled in favor of the city. The Ninth Circuit reversed the District Court’s decision, stating the city’s asserted interests were not unrelated to the suppression of speech. Again, the United States Supreme Court reversed the Circuit Court’s decision, concluding the ordinances presented a reasonable and valid governmental response to the secondary effects created by adult movie theaters.

Barnes v. Glen Theatre, Inc. (1991)

An Indiana law made it illegal to appear in public nude, thus requiring strippers to wear, at minimum, “pasties” and a “G-string” to cover the offending areas of the body. Two South Bend clubs and their dancers wished to offer full nudity, so they sued the city and its officials in the United States District Court for the Northern District of Indiana for First Amendment violations. The District Court overthrew the law, but when the United States Court of Appeals for the Seventh Circuit bounced the suit back at them, they decided nude dancing was not, in fact, a protected expressive activity and thus protected by the First Amendment. The case again reached the Court of Appeals, which found the dancing protected by the First Amendment and therefore denied the state the right to enforce the law.

The United States Supreme Court splintered but eventually reversed the decision, 5-4, stating Indiana could prohibit nude dancing performed as entertainment without violating anyone’s First Amendment rights. The court did, however, acknowledge nude dancing’s place within the outer perimeters of the First Amendment, but said since the law was a general statute not directed solely at erotic dancing, it did not impede expression. “As a result of the fragmented decision, jurists and state and local legislators had no clear rule to rely upon” (Brogdon, 2003, p.89).

Erie v. Pap’s A.M. (1999-2000)

Similar to Barnes v. Glen Theatre, Erie, Pennsylvania, enforced a public indecency law making it illegal to appear nude in public on purpose – again leaving strippers in “pasties” and “G-strings” with a law virtually identical to the offensive Barnes v. Glen law (Brogdon, 2003). Two days after the law went into effect, the owner of a strip club in Erie filed complaints against city officials and asked for an injunction against enforcement of the law. The Court of Common Please of Erie County dubbed the ordinance unconstitutional and offered the injunction. The Commonwealth Court reversed the Court of Common Pleas’ decision, and the Pennsylvania Supreme Court reversed that decision on the basis of First and Fourteenth Amendment rights, dismissing the Barnes cases as a plurality decision without value as a precedent (Brogdon, 2003)

The United States Supreme Court reversed, again splintering and citing the club (which, at that point, was not even a strip club anymore) as subject to state laws and the city’s attempts to combat secondary effects. Furthermore, it argued the city was protecting public health and safety by regulating conduct, not suppressing expression. Again, the court failed to provide a clear decision with which to guide lawmakers and lower courts (Brogdon, 2003).

Though the United States Supreme Court usually rules in favor of the municipality in adult entertainment-First Amendment cases, concessions it makes in its decisions can come back to haunt it, as they did with the Barnes and Erie decisions. The court waffles with issues of what aspects of dance have First Amendment protections and which do not. As the court regroups in the next few months under a new chief justice, it should be interesting to see what interpretations come to light and if they come to light at all because of the seemingly conservative turn the court may take with John Roberts and (potentially) Samuel Alito. After all, as Justice Anthony Kennedy wrote in United States v. Playboy Group, the “history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly (2000).”


Peoria County is currently home to three strip clubs – Big Al’s (533 Main St.), Fantasyland (Farmington Road) and Elliot’s (7805 N. University St.), and another, Club Cabaret, operates out of nearby Creve Coeur. Big Al’s, with its 31-year history in Peoria, is, to some, as much a part of Peoria as Caterpillar, and newer-additions Fantasyland and Elliot’s are carving their own niches in the community (Davis, 2005a; McKenzie, 2005). Peoria is an attractive spot for prospective strip club owners. Caterpillar and other large institutions bring business travelers into the city from all over the country, and the Peoria Civic Center hosts large events throughout the year, importing tourists who may be interested in what the clubs have to offer.

These clubs are not without restriction, however, and they face protests from several venues. In 2003, the city of Peoria put an adult-use ordinance in place to prohibit full nudity at then-newly opened Fantasyland, and in October of that year, it amended its ordinance to prohibit alcohol at any new adult-oriented businesses. Big Al’s and Fantasyland were grandfathered in, but Elliot’s cannot serve alcohol and subsequently allows into its establishment any patrons over the age of 18 (Davis, 2005a).

Last spring, Peoria played host to a non-binding referendum asking voters “if they would like the city to ‘impose a ban on full nudity in new and existing adult cabaret clubs and strip clubs as early as April 2005?'” (Davis, 2005a, p. A1), and 62 percent of voters answered to the affirmative. The referendum, championed by Citizens for Community Values of Peoria, Inc., member Sandra Fritz, led to the collection of 2,750 signatures to secure its position on the April 5, 2005, ballot (Hopkins, 2005). In addition to the full-nudity ban, Fritz wants Peoria officials to be sure the strip clubs are following all local and state laws, insuring there is no sexual activity, no drugs and no underage drinking in the clubs (Davis, 2005b). Though the referendum passed, no moves have been made by either the city or county of Peoria to enforce the referendum, and, in March, City Attorney Randy Ray and Peoria County Administrator Pat Urich said there were no plans to put any new adult-use laws on the books. In September, Ray reiterated that assertion (Davis, 2005b). Al Zuccarini, owner of Big Al’s, told Hopkins (2005) the failure by the city to act on this referendum is a sign the city recognizes the role of his business in the community, and that role is not always negative one. Zuccarini also cited his club’s lack of citations for underage drinking, drugs or prostitution and the $100,000 worth of taxes he pays each year to the city and state.

Should the city choose to pursue the ordinance, both the club owners and Fritz recognize the fact that a lawsuit will be brought against the city for violating the clubs’ First Amendment rights. Elliot’s already has a suit pending against the city over the denial of a liquor license, and Scott Wood, a co-owner of Elliot’s, told Hopkins (2005) any further ordinances would be added to the lawsuit. Fritz was quoted in the same article as saying, “‘we know if they try to ban full nudity there will be a lawsuit. The question is does the city want to fight that lawsuit even if it’s winnable'” (p. A1).

First Amendment violations are to be expected when one’s speech – symbolic or otherwise – is not considered the “norm” for one’s legislators or municipalities, and the adult-entertainment industry faces constant criticism for what it represents. Even if the lawmakers are benign on the issue, community activists like the Citizens for Community Values, Inc. will push referendums to squash rights of strippers and their bosses. Fritz was quoted in the Peoria Journal Star as saying, “I can’t imagine that people want full nudity and lap dancing (Hopkins, 2005, p. A1),” but, frankly, one of the beauties of the First Amendment is it does not just cover what morality activists can imagine. Zuccarini, in the same article, hit the nail on the head when he called Peoria a “live-and-let-live community âÂ?¦ there are people that want to go to opera, there are people that want to go to ball games, there are people who don’t want to go to Big Al’s but there are people who do. It’s an adult club for adults (p. A1).”


Abels, C. (2003, April 10). Limiting Adult Businesses in City of Pittsburgh Invites Legal Action. Pittsburgh Post-Gazette. Retrieved Oct. 25, 2005, from EBSCOhost.
Associated Press. (2005, Aug. 5). Strip Club Owner Raises Ire With New Sign. The Daily Breeze. Retrieved Nov. 24, 2005, from
Barnes v. Glen Theatre, Inc.; 501 U.S. 560, Supreme Court of the United States (1991). Retrieved Nov. 24, 2005, from LexisNexis.
Brandert, M. (2005, Nov. 20). Small towns, small strip bars: uneasy unions. TheArgusLeader. Retrieved Nov. 24, 2005, from
Brogdon, A. (2003). Improper Application of First-Amendment Scrutiny to Conduct-Based Public Nudity Laws: City of Erie v. Pap’s A.M. Perpetuates the Confusion Created by Barnes v. Glen Theatre, Inc. B.Y.U Journal of Public Law, 27, 89-112. Retrieved Nov. 23, 2005, from EBSCOhost.
Brundrett, R. (2000, May 1). State Supreme Court Strips Down Greenville Country, S.C., Anti-Porn Laws. The State (Columbia, S.C.). Retrieved Nov. 2, 2005, from EBSCOhost.
California et al. v. LaRue et al.; 409 U.S. 109, Supreme Court of the United States. Retrieved Nov. 24, 2005 from LexisNexis.
Calvert, C. & Richards, R. (2004). Stripping Away First Amendment Rights: The Legislative Assault on Sexually Oriented Businesses. NYU Law Journal of Legislation and Public Policy, 7(2), 101-148. Retrieved Nov. 20, 2005, from Scopus.
Davis, J. (2005, March 22). Ballot measure targets cabarets – Values coalition know that nonbinding referendum won’t immediately change law, but members hope to cause a stir. Peoria Journal Star, A1. Retrieved Nov. 4, 2005, from Factiva.
– – – – (2005b, Sept. 28). Advocates renew push for nudity ban – Voters OK’d strip club referendum in April. Peoria Journal Star, B1. Retrieved Nov. 3, 2005, from Factiva.
Erie (city of), et al. v. Pap’s A.M.; 529 U.S. 277, Supreme Court of the United States. Retrieved Nov. 24, 2005, from LexisNexis.
Franklin, S. (2005, May 18). Working, silently in the shadows of the Las Vegas strip. Chicago Tribune. Retrieved Oct. 25, 2005 from EBSCOhost.
Gonzales, M. (2005, Aug. 4). Suburb mulls “adult zone.” The Denver Post, p. B2. Retrieved Nov. 2, 2005, from LexisNexis.
Hopkins, E. (2005, April 6). Voters to city: Close curtains on full nudity. Peoria Journal Star, A1. Retrieved Nov. 3, 2005, from Factiva.
Hudson, D.L. (2005). Nude Dancing. Retrieved Nov. 2, 2005, from The First Amendment Center Web site: news.aspx?id=15718.
Lewis, P. (2005, Sept. 13). Judge blasts 17-year moratorium on issuing new strip-club permits. The Seattle Times. Retrieved Oct. 20, 2005, from EBSCOhost.
Margolies, D. (2004, Aug. 28). Ban on sexually oriented highway billboards in Missouri gets challenge. The Kansas City Star. Retrieved Oct. 20, 2005, from EBSCOhost.
McKenzie, T. (2005, March 24). Big Al’s says club follows the rules, has clean record – Owners say referendum took them by surprise. Peoria Journal Star, B1. Retrieved Nov. 4, 2005, from Factiva.
First Amendment Center. (2005). State of the First Amendment 2005. Retrieved Oct. 1, 2005, from The First Amendment Center Web site:
Renton (city of) et al. v. Playtime Theatres, Inc., et al.; 475 U.S. 41, Supreme Court of the United States (1985-6). Retrieved Nov. 24, 2005, from Lexis Nexis.
Ritter, J. (2002, Aug. 19). Lap dance rules have some hot, bothered. USA Today. Retrieved Nov. 2, 2005, from EBSCOhost.
Rosen, E. (2005, June 19). Two Towns, Two Strip Clubs, Two Battles. The New York Times, p. 5. Retrieved Nov. 10, 2005, from LexisNexis.
(n.d.) Sexually Oriented Businesses. Retrieved Nov. 2, 2005, from Citizens for Community Values Web site: Oriented_Business.htm.
United States v. O’Brien; 391 U.S. 367, Supreme Court of the United States (1968) Retrieved Nov. 24, 2005, from LexisNexis.
United States v. PlayboyEntertainment Group; 529 U.S. 803, Supreme Court of the United States (1999-2000). Retrieved Nov. 24, 2005, from LexisNexis.
Young v. American Mini Theatres, Inc., et al.; 427 U.S. 50, Supreme Court of the United States (1976). Retrieved Nov. 24, 2005, from LexisNexis.

Leave a Reply

Your email address will not be published. Required fields are marked *

− 2 = one