This article was published in the Los Angeles Daily News on 3-17-02

© Copyright 2002 by Susan Shelley

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How the First Amendment  Came to Protect Topless Dancing

By Susan Shelley

The Los Angeles City Council voted 10-0 recently to shut down a Tarzana nude bar, but the council is baying at the moon, so to speak.

The Frisky Kitty has a constitutional lawyer and a First Amendment argument and it's not going anywhere.

This would have shocked James Madison, and not because of the lap dancing. The man who's been called the "Father of the Constitution" tried to persuade the First Congress to adopt an amendment that would have prevented the states from abridging freedom of speech. Rep. Madison's amendment was defeated.

The fact is, the First Amendment's guarantee of freedom of speech and the press did not apply to state and local governments at all. It was a limitation only on the powers of the U.S. Congress.

As Thomas Jefferson wrote in 1804, "While we deny that Congress have a right to control the freedom of the press, we have ever asserted the rights of the states, and their exclusive right, to do so."

Even after the Civil War, when the new 14th Amendment barred any state from denying any person due process of law, the Bill of Rights did not apply to the states.

In 1900, the U.S. Supreme Court held in the case of Maxwell v. Dow that the first 10 amendments to the Constitution "were not intended to and did not have any effect upon the powers of the respective states," adding dismissively, "This has been many times decided."

In 1947, Justice Hugo L. Black argued (in dissent) in the case of Adamson v. California that the framers of the 14th Amendment did in fact intend to make the Bill of Rights apply to the states, but his analysis was pounded into the ground two years later by legal historian Charles Fairman.

Justice John Marshall Harlan wrote in 1968, "The overwhelming historical evidence marshaled by Professor Fairman demonstrates, to me conclusively, that the Congressmen and state legislators who wrote, debated, and ratified the 14th Amendment did not think they were 'incorporating' the Bill of Rights."

How did we get here?

It's a long story, but here's the short version: Over the course of the 20th century, the justices of the U.S. Supreme Court gradually incorporated the provisions of the Bill of Rights into the 14th Amendment's "due process" clause by declaring that each of the rights was "fundamental" to the conception of due process of law.

The court held, in landmark case after landmark case, that a fundamental right could not be infringed by a state unless there was a compelling reason -- not merely a rational reason -- to do so.

The "incorporation" of freedom of speech dates to the 1925 Gitlow v. New York case, when the court said, "For present purposes we may and do assume that freedom of speech and of the press -- which are protected by the First Amendment from abridgment by Congress -- are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."

By 1991, this assumption had led the Supreme Court to consider whether an Indiana law requiring dancers to wear pasties and G-strings was a violation of the First Amendment. The justices ruled 5-4 that it was not, applying a complicated four-part test designed to determine if the state's need for the law was compelling enough to justify an infringement on the dancers' right of free speech.

It doesn't take a Philadelphia lawyer to see that with four justices dissenting from this decision, the outcome of the next topless dancing case could be different.

That's the problem with the incorporation doctrine. Judgment calls that once belonged to local voters have been seized by the U.S. Supreme Court, which will never have the time to determine the necessity and appropriateness of every state and local law.

That leaves every local government in the country vulnerable to paralyzing litigation and prevents voters from exercising powers that the framers of the Constitution and the 14th Amendment plainly reserved to them.

Susan Shelley is the author of the coming novel "The 37th Amendment," with an appendix on "How the First Amendment Came to Protect Topless Dancing," which can be read online at

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