Stormy Daniels Was Arrested Because of a Terrible Law That Threatens Free Expression

Kobby Dagan/Dreamstime.comKobby Dagan/Dreamstime.comEarlier this week, Stormy Daniels, the adult film star who says she took hush money to stay quiet about an alleged 2006 affair with Donald Trump, was arrested for violating an Ohio statute that prohibits a stripper from allowing patrons to touch her if she is nude or semi-nude. The statute used against her is an example of how free expression can fall victim to zealous moralizers—and how almost any law aimed at free expression can be used to punish a political opponent.

These regulations—typically known as “no touch” or “proximity” rules—are common, and throughout their history they have been used to make end-runs around the First Amendment.

There’s no escaping the conclusion that erotic dancing is a form of expression protected by the Bill of Rights. As Judge Richard Posner wrote in the 1990 case, Miller v. City of South Bend, any notion that nude dancing is not expression is “indefensible and a threat to artistic freedom.”

He articulated his reasoning as follows:

The goal of the striptease—a goal to which the dancing is indispensable—is to enforce the association: to make plain that the performer is not removing her clothes because she is about to take a bath or change into another set of clothes or undergo a medical examination; to insinuate that she is removing them because she is preparing for, thinking about, and desiring sex. The dance ends when the preparations are complete. The sequel is left to the viewer’s imagination. This is the ‘tease’ in ‘striptease.’

In Schad v. Borough of Mount Ephraim (1981), the Supreme Court made it clear that totally banning nude entertainment violates the First Amendment.

As the law became more permissive, those who wanted to restrict strip shows were forced to get more creative. After all, if a would-be censor doesn’t want a strip club in his town, and the First Amendment protects it, what is he to do?

Enter the “adverse secondary effects” doctrine from Renton v. Playtime Theatres (1986), in which the Supreme Court said that the government can’t restrict adult businesses because the

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