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Another Circuit Court Rules Against Nude Bars

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By Jonathan R. Tung, Esq. on December 11, 2015 6:00 AM

It's been a tough time for business owners who want to open exotic dancing businesses. Both the Seventh Circuit and the a New Jersey appeals court handed down decisions that disfavored the legal arguments put forth by business owners who sought to open strip clubs in their respective towns.

Boy, can't someone run an honest nude bar anymore?

Nude Dancing = Free Speech?

In a suit against the private firm HMS Host Toll Roads, Bare Exposures alleged that HMS improperly removed advertising fliers that the business had posted throughout a business plaza that HMS maintained and in which Bare Exposures was located. In the complaint, Bare Exposures alleged violations of Free Speech, a strategy that the Butlers tried to get their business "Showgirl" up and dancing in Angola, Indiana. In that case, the business owners were largely unsuccessful in their claims of free speech violations and have been use-zoned into submission.

Only State Actors

Typically, free speech claims can only be brought against government actors. And that was the basis of Bare Exposures' theory. According to Bare Exposures, HMS acted "under the color of state authority" because when it removed the fliers from the plaza, the company was still operating under a contract with the South Jersey Transportation Authority and the New Jersey Turnpike Authority -- both state actors.

The judge sided with HMS and dismissed the First Amendment claim and found that Bare Exposure's characterization of HMS as some state actor based on the contract theory was "anemic at best." Smith said that there was "no specific involvement of the authorities in Host's decision to remove the brochures." In fact, the "mere perception of government control is insufficient for finding state action under the entwinement test."

What this basically tells legal analysts is that the argument of whether or not nude dancing is a form of speech is not really a central issue. What's at issue is what distinguishes a state actor from a private one. Increasingly, circuit courts are reticent to find state action where there is a tangible relationship between private and state entities. But a mere contract and appearance isn't going to pass the test at all.

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