The Oregon Legislature once again is preparing to consider an amendment to the Oregon Constitution's free speech provision that would make it easier to regulate nude dancing establishments.
The government may very well seek to do both: concern over the potential problems that accompany nude dancing establishments often accompanies and reinforces hostility to the explicit sexual content of such performances.
(137) The ordinance was specifically targeted at nude dancing establishments with regard to both its "applicable scope and the city's enforcement." (138)
Similarly, audience discrimination is particularly problematic in the case of live, nude dancing establishments. Such venues are frequently limited sharply by number and separated by geography; they are often few and far between.
(225) This is perhaps the plurality's most tenuous conclusion, for evidence was neither required nor offered that the wearing of pasties and G-strings by erotic dancers would have any remedial effect on the secondary effects associated with nude dancing establishments. (226) Erie did not point to any study suggesting that the adverse secondary effects of adult-oriented businesses offering erotic dancing depends in any way on the precise costume worn by the performers.
First, it does not require any particularized evidence of real harms associated with nude dancing establishments. Second, it does not require a city to tailor its regulation to alleviate those harms (real or otherwise) in an actual manner.
(6) Although the focus of this Comment is on nude dancing establishments, I will at times use "adult-oriented businesses" or "adult establishments," which unless specified as "adult theatres" or "nude dancing establishments" may include video and book stores; motels; massage parlors; sex clubs; topless, bottomless, and nude bars; and peepshows.
The city council members, familiar with commercial downtown Erie, are the individuals who would likely have had firsthand knowledge of what took place at and around nude dancing establishments in Erie, and can make particularized, expert judgments about their resulting secondary effects.
at 316 (Souter, J., concurring in part and dissenting in part) (explaining that there were zoning ordinances already in effect to regulate nude dancing establishments, but they were not enforced by the City of Erie).