These controversies aren't invented for constitutional law professors to have fun with.
It just seems that way.
Okay, you don't want your neighborhood, which happens to have a nightclub nearby, turned into a red light district, or the next best thing, a haven for lap-dancing emporia, where you can't tell the customer from the entertainer because they're wrapped around each other, except the customer is the guy with the toupee in the polyester suit.
There oughta be a law, you say.
So you get the city council to pass a law which you've specially written, since you're a law student and this is your chosen field, law, clear law, understandable law that even an idiot could follow, if they wanted to, that is. But, they don't.
Here's the law you've drafted: It shall be unlawful for entertainers and patrons to caress or fondle each other, or one another.
No more lap dancing, right?
Problem solved?
Suppose a patron wants to shove a $5 bill down the g-string of an "entertainer." Is that caressing or fondling? How about a $20 bill?
We have a rule, in Con-Law that goes like this. If you want to make something a crime, state exactly what it is, with sufficient clarity that two people know exactly what is prohibited: the actor and the cop who polices the actor. Because if you leave it the least bit vague and open to guesswork, the actor never knows when he, she, or both, in this case, when the line has been crossed into criminality. We don't want to make innocent people unwitting criminals. People subject to the law need to be able to know how to conform their conduct to it to avoid accidental, meaning innocent, wrongdoing.
"I didn't know that was a crime, Stanley," says Ollie. We don't want to put Stanley in jail for his ignorance when it's the law-writer's fault that he's ignorant.
Nor do we want to give the cops the unfettered discretion to lock you up because he doesn't like the look in your eye, and his pretext is this law you didn't know you were violating.
This has been called "Dog Law," by a California Supreme Court Justice, on the theory that you wait for the dog to do something wrong and then you kick it to teach him a lesson. That's what you're doing when you write vague laws.
They're a violation of due process.
Here's the Las Vegas story, complete with a photograph of an example of the conduct in question, in which a Nevada judge has declared unconstitutional the lap-dancing ordinance because fondling and caressing are too vague for non-idiots to follow without innocently getting in trouble.
Innocently?
In Las Vegas?
Isn't there a presumption of naughty in Nevada?
We may have to rethink this whole notion of morality.
Here's the problem. It's like the problem of trying to outlaw certain kinds of firearms. If you write a general statute, the person seeking to avoid its strictures can carefully custom-tailor his weapon to avoid the statute, such as by making a banned automatic rifle semi-automatic.
But if you enact a statute banning a specified list of firearms, say by name, or caliber, guess what. The manufacturer simply changes the name or specifications to get off the list.
A trick mirror problem of its own, it seems.
In the lap dancing case, dancing is a constitutionally protected form of expression, deserving of the highest scrutiny. So when you try to ban certain forms of dancing and not others, you run into First Amendment problems from the git.
Which move, exactly, is unprotected?
An obscene motion or contact? That might work.
Which fondling or caressing do you find obscene under the Miller test?
The Supreme Court has had difficulty defining which works fall into the unprotected "obscene" category. Justice Potter Stewart, tired of wrestling with the question, apparently, and probably bored with reading briefs on porn, with exhibits, threw up his hands at trying to define obscenity. "I know it when I see it," was the best he could do.
That ain't enough in enacting penal statutes. Violates D/P. Vague. Unconstitutional. Las Vegas.
Incidentally, that's how we analyze potential free speech violations. We ask whether the expression is protected under the Constitution or not. And then look up the law for similar examples. The Court, taking a national view, protective of expression to the extent possible, tends to side, on its good days, with greater protection rather than less.
I gotta run.
Plane to Vegas.
Research...