New York University Public Law and Legal Theory Working Papers

Document Type



October 2005 NYU Law Review


What is it about the nude female body that inspires irrationality, fear, and pandemonium, or at least inspires judges to write bad decisions? This Article offers an analysis of the Supreme Court’s nude dancing cases from a perspective that is surprising within First Amendment discourse. This perspective is surprising because it is feminist in spirit and because it is literary and psychoanalytic in methodology. In my view, this unique approach is warranted because the cases have been so notoriously resistant to traditional legal logic. I show that the legal struggles over the meanings and the dangers of the gyrating, naked female body can be fully understood only when placed within a broader context: the highly charged terrain of female sexuality. By rereading the cases as texts regulating gender and sexuality and not just speech, a dramatically new understanding of them emerges: The nude dancing cases are built on a foundation of sexual panic, driven by dread of the female body. Ultimately, this analysis reveals a previously hidden gender anxiety that has implications not only for the law of nude dancing, but for First Amendment law more broadly. By presenting the ways in which irrational cultural forces shape the Court’s supposedly rational analysis in the nude dancing cases, in the end I point toward an unusual conception of First Amendment law: Free speech law governs culture, yet in surprising ways, culture also governs free speech law.

Date of Authorship for this Version

January 2006