Erotic dancers in Jacksonville now need to be of drinking age. The Eleventh Circuit upheld a city ordinance prohibiting erotic dancers under the age of 21 from performing at adult-entertainment establishments. What’s interesting is that the Eleventh Circuit openly acknowledged that adult entertainment ordinances are effectively graded on a government-friendly curve. Specifically, "although these ordinances are not strictly content-neutral, they are simply treated as such.” So, instead of applying “strict scrutiny” to the ordinance—which would usually kill it—the courts apply the more government-friendly intermediate scrutiny. The reason for this seemingly unprincipled approach is rooted in the so-called “secondary effects” doctrine—the notion that the government really isn’t trying to target a particular kind of speech but, rather, the undesirable effects that flow from that speech (in the case of under 21-year-old erotic dancers, human trafficking).
Still, Judge Newsom, who penned the opinion for the majority, also wrote a concurrence, expressing doubt over the “continuing vitality of the secondary effects doctrine.” He wrote: "The problem, as I see it, is that the government’s subjective motivation for imposing a speech restriction—whether virtuous, wicked, or somewhere in between—has nothing to do with the threshold question whether the restriction is, objectively, content- based or content-neutral. That’s a determination to be made on the face of the restriction, not on the government’s underlying purpose or intent."
Probably didn’t help the appellants’ cause that one of the establishments challenging the ordinance goes by “Wacko’s Too”….
3 comments:
Newsom is right, Renton and the "secondary effects" analysis is incoherent nonsense.
Agreed. What does this mean for only fans girls in Duval County, Florida? Do you have to be 21 to start an onlyfans? A really odd ruling, especially given how sexualized children are in our society from such a very young age.
The unspoken issue here is that the age of consent in our society has been creeping from 18 to 21 for decades now. Alcohol went from 18 to 21 in most states in 1984. Tobacco went from 18 to 21 in 2019. Some states only allow gambling for 21 and over. That's not necessarily a bad thing. There seems to be a lot of evidence supporting the notion that our brains are not fully developed until about 25. But that gray area between liability as an adult but being treated like a child is a real tension in the law, I think.
For the very nerdy among us, Tolkien conceived of three life phases for Hobbit society. Childhood and adulthood, and a sort of legal adolescence with limited responsibility and accountability. For a lot of us, especially in the upper and upper-middle classes, college traditionally served that role. But that is an informal privilege of wealth and comfort. It would be nice to see the law acknowledge what we all know - 20 year old boys are morons who can grow up to be upstanding 40 year old men, and 19 year old girls can do insanely stupid things that their 35 year old future selves should be protected from. And those things can be true while letting them live adult-ish lives.
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