NCJ Number
17662
Journal
Northwestern University Law Review Volume: 68 Issue: 1 Dated: (MARCHAPRIL 1973) Pages: 130-161
Date Published
1973
Length
32 pages
Annotation
IN THIS 1972 DECISION, THE COURT RULED THAT STATE REGULATIONS DESIGNED TO PROHIBIT NUDE ENTERTAINMENT IN 'TOPLESS-BOTTOMLESS' BARS DID NOT INFRINGE UPON THE FREEDOM OF SPEECH OF TAVERN OWNERS AND DANCERS.
Abstract
THE SUPREME COURT MAINTAINED IN LARUE THAT NUDE ENTERTAINMENT IN TAVERNS WAS NOT PROTECTED EXPRESSION SINCE, AS NON-COMMUNICATIVE CONDUCT, IT WAS OUTSIDE THE SCOPE OF THE FIRST AMENDMENT. THIS CASE NOTE FOCUSES ON AND ANALYZES THE DOCTRINAL IMPLICATIONS OF THE COURT'S DECISION TO DISTINGUISH BETWEEN COMMUNICATIVE CONDUCT (FALLING WITHIN THE SCOPE OF THE FIRST AMENDMENT) AND NON-COMMUNICATIVE CONDUCT (FALLING OUTSIDE). THREE DOCTRINAL TESTS AVAILABLE FOR RESOLUTION OF THE INFRINGEMENT ISSUE IN SUCH CASES ARE EXAMINED. THE FIRST IS THE OBSCENITY TEST SET DOWN IN ROTH V. UNITED STATES (1956)--WHETHER, APPLYING CONTEMPORARY COMMUNITY STANDARDS, THE DOMINANT APPEAL OF THE COMMUNICATIVE CONDUCT IS TO THE PRURIENT INTEREST AND UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE. THE SECOND TEST IS THE INQUIRY OF UNITED STATES V. O'BRIEN (1968)-WHETHER THE STATE'S REGULATION OF THE CONDUCT ELEMENT IN THE COMMUNICATIVE CONDUCT IS IN FURTHERANCE OF A COMPELLING STATE INTEREST UNRELATED TO THE SUPPRESSION OF FREE EXPRESSION. THE THIRD STANDARD IS THE DOCTRINE OF COMMERCIAL EXPRESSION ENUNCIATED IN VALENTINE V. CHRESTENSEN (1942)-WHETHER THE COMMUNICATIVE CONDUCT IS SO CLEARLY DIRECTED TO THE PROMOTION OF SALES FOR PROFIT THAT IT IS COMMERCIAL ADVERTISING MERITING ONLY LIMITED FIRST AMENDMENT PROTECTION. IT IS SUGGESTED THAT, ALTHOUGH ALL THREE TESTS DELINEATE THE SCOPE OF FIRST AMENDMENT PROTECTION THROUGH A BALANCING OF INTERESTS, O'BRIEN IS THE PREFERABLE STANDARD SINCE IT BALANCES INTERESTS EXPLICITLY AND CAN BE USED TO INTRODUCE MODERN COMMUNICATION THEORY PRINCIPLES INTO FIRST AMENDMENT ADJUDICATION. THE AUTHOR CONTENDS THAT, WITH A SLIGHT REPHRASING OF ITS CRITERIA, O'BRIEN COULD FOLLOW THE 'MEDIUM IS THE MESSAGE' PRINCIPLE BY SEEKING TO DETERMINE HOW INTEGRAL TO THE COMMUNICATION OF A PARTICULAR MESSAGE IS THE CONDUCT BEING CLAIMED AS A COMMUNICATIVE MEDIUM. CITED ARE SEVERAL U.S. SUPREME AND STATE COURT DECISIONS PROTECTING UNCONVENTIONAL MEDIA OF COMMUNICATION WHEN THEY ARE OF SUCH UNIQUE CHARACTER THAT THE INTENDED MESSAGE CANNOT BE AS EFFECTIVELY CONVEYED IN ANY OTHER MANNER. THE AUTHOR FURTHER MAINTAINS THAT MODIFICATION OF THE O'BRIEN TEST IS ALSO WARRANTED SINCE THE LEGAL CONCEPTION OF HUMAN COMMUNICATION CONTINUES TO BE VERBAL WHILE VARIOUS FORMS OF NON-VERBAL COMMUNICATION HAVE DEVELOPED. (AUTHOR ABSTRACT MODIFIED)