Agenda - Planning Commission - 09/07/1999

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Page 2- August 10, 1999 Z.B. First Amendment -- Town ordinance prohibits public dancing without permit VIRGINIA (6/29/99) Elam owned a restaurant in the town of Pound. A town ordinance prohibited public dancing without a permit. The ordi- nance stated the town council could issue a permit only to a "proper person" or a person of"good moral character." Charitable, religious, or educational orga- nizations didn't need a permit if their dances weren't held where alcoholic beverages were commonly served. The council could revoke a dance permit for "any improper or immoral conduct." Elam applied for a dance permit for his restaurant, only to see it tabled by the council when opposition arose. Elam withdrew his application because he knew he couldn't reappty for six months if the council denied his request. Elam sued the town, claiming the ordinance violated his free speech rights. He said the type of dancing he proposed was "just like you'd find at any Holiday Inn or any club, nothing special, just people dancing." Though the First Amendment prohibits laws that abridge the freedom of speech, certain restrictions on speech are atlow, ed. Regulations that govern expressive conduct, which involves a mixture of speech and nonspeech ele- ments (like dancing), are allowed if they further an important governmental interest unrelated to the suppression of free expression and the incidental re- striction on free speech is no greater than necessary. According to an earlier U.S. Supreme Court decision, however, "recreational dancing" isn't protected by the First Amendment. The town claimed the type of dancing Elam proposed was "recreational dancing" and therefore not proteFted by the First Amendment. The town said its biggest concern with dancing was the drinking of alcohol associated with it. It said it wanted to protect its residents from the problems associated with public dance halls. Elam asked the court for judgment without a trial, seeking a court order prohibiting the town from enforcing the ordinance. DECISION: Judgement granted to Elam. The ordinance was unconstitutional and couldn't be enforced. According to the court: "While the tagline to Footloose read: 'The music is On his side,' in this case the law specifically the Constitution of the United Stares, is on the side of [Elam]." :~: Elam could challenge the ordinance even if the dancing he proposed was unprotected "recreational dancing," because the ordinance did regulate pro- tected First Amendment rights. Unlike most challenged dancing ordinances, the town's ordinance didn't focus only on nude dancing, tt didn't even attempt to regulate only "recreational dancing." The ordinance restricted ail public danc- ing including a square dance, the lambada, pantomime, o~ ballet. The ordinance violated the First Amendment. The town's interest in com- bating the problems associated with alcohol was legitimate, and concerns