With changes, LA stripping age limit law may work

The race is on between whether a federal court will toss out a Louisiana law limiting exotic dancing for those under 21 years or age or the state can fix apparent defects in the law prior to that.

Last week, Eastern Louisiana District Court Judge Carl Barbier extended injunctive relief to plaintiffs against Act 395 of 2016. The law prohibits people aged 18-20 years from working as strippers in places that serve alcohol. This continues an order granted last year against the measure that seeks to reduce the incidence of human trafficking, arguing that younger adults face heightened risk at being sucked in to prostitution through nude dancing.

Such municipal ordinances – New Orleans has one with more specific language – and state laws historically have had a tough row to hoe because of concerns over the chilling effect that such a prohibition has on First Amendment rights. For decades, constitutional law has recognized nude expression as a protected form of speech, creating demanding standards to regulate it in any way.

As currently written, the statute has warts, Barbier opined. While it met a number of tests, principally that it could behave in a content-neutral fashion where the state had adequate justification to permit its enforcement, he wrote it failed in two significant ways. First, it suffered from the potential of overbroad application; for example, it would apply to situations with no real risk to encourage trafficking such as a theater that serves alcohol staging nude performances. Second, it too vaguely defined what constituted the nudity subject to enforcement.

Thus, Barbier declared that the plaintiffs had a reasonable chance of succeeding in their claim and therefore the injunction would continue to prevent enforcing the law. But he also pointed out potential solutions to the defects he saw. For example, the New Orleans ordinance provided a more exacting definition of nudity, and another from Spalding, GA had language exempting venues outside of strip clubs.

This gave hope to state Sen. Ronnie Johns, who had sponsored the bill. Johns indicated he would return with a bill this spring to iron out whatever difficulties judicial decisions seemed to identify. In essence, as long as government demonstrated that its regulatory approach reasonably could achieve its objective without much intrusion into free expression, Barbier indicated he would uphold the law.

If so, this could make Louisiana a pathbreaker in this kind of legislation. No state has successfully kept on the books a law that limits dancers’ ages. While a “pole tax” approach might produce results less at risk constitutionally and more effectively, with modifications this course may work, and therefore policy-makers should pursue it.