Gypsy Rose Lee might have had something to say about the art of the bump and grind, as would Bob Fosse. But Supreme Court justices have not, to date, been asked to make a determination about the artistic value of the lap dance. However, if Stephen Dick, owner of the Albany strip club Nite Moves succeeds in taking his case to SCOTUS, that will change.
Whether or not a lap dance is a choreographed dance is the argument at the center of a 2005 tax case that Dick lost 4-3 in the New York Court of Appeals last year. The origin of the case stems from a provision in New York’s tax code that exempts dramatic and musical performances from sales taxes. The Court ruled that the stage and private performances taking place inside of Nite Moves did not qualify as such. But when courts make a determination as to what is and is not art, they are not on the most solid ground. As the dissenting opinion read, “It does not matter if the dance was artistic or crude, boring or erotic. Under New York’s tax law, a dance is a dance.” After that defeat, Dick hired First Amendment expert Robert Corn-Revere, who has petitioned the Supreme Court to hear their appeal.
The expert witness who testified in the initial case is the only person in the country who has made a thorough study of exotic dance as dance. University of Maryland anthropologist Judith Lynne Hanna has been studying dance for six decades and exotic dance for nearly two. Last year, she published The Naked Truth, which contains the most exhaustive taxonomy of exotic dance moves published to date. She is a figure of some controversy in the dance world because of her views on this form of popular dance and as a defender of it as a form of dance deserving of the same study and regard as others. Hanna has testified in well over 100 court cases, many of them concerning First Amendment issues.I spoke with her last year on the publication of her book and again this week about the Nite Moves case.
In the Nite Moves case, when you testified, it was on the distinction between “artistic performance” and “amusement?”
Also choreographed performance. That was a key factor.
So how would you describe the performance of lap dances versus stage performances? Are lap dances also a choreographed performance?
A choreographed performance is a performance that has some plan. And it has some specific use of time, space, effort, and of body movement and posture. Just as a dancer on stage has a routine, whether she's going to the mirror, whether she's going to the pole, whether she's changing flow over the performance, it usually very much depends on the dancer's earlier background. Some people have had ballet, some have been in dance companies, some draw on moves they had as a cheerleader or social dancing, They watch television or they just watch the dancers who are already dancing and learn like most people learn, which is by watching or being coached. So the issue was can you have improvisation? Well, of course. Even in a very choreographed ballet performance there can be interpretation by the specific dancer. Some people just think that you don't dance when you are an exotic dancer or doing striptease, that all you do is get up and shake your booty.
"You can come out as gay, you can come out as an atheist, but you can't come out as a stripper."
They should try shaking their booties if they think it's that easy.
The other thing is, I've been dancing since I was 10. I tried to dance with a video, and just changing the levels, from being on the floor, to being on your knees, to standing up, just changing the elevation and doing it gracefully, was not easy. And if you have heels on, it's certainly not easy. People just don't see that.
So the lap dance is improvisation in the framework of a dance with its own goal?
There's a range of what takes place. If you take from the model—the lap dancer, she performs certain kinds of moves on stage, right? She takes those same moves for the lap dance, you know, before she's sitting on the lap and grinding or moving, right? So it's part of a whole. And the lap dance is part of the general performance. I think some dancers do beautiful dances before the patron. And I've also seen people who just jump on and hump. But that you could say for any dance form. There are some people who “violate” the form, if you will.
Are there other examples where courts have tried to tax dancing as a punitive measure or tried to associate it with crime?
I really don't know. I know that there's a history of trying to close down and stop certain kinds of dancing through the church. That goes back a long way. People are just afraid of the body in motion. The instrument of dance and sex are one and the same. I think that strip clubs are vulnerable for several reasons and that is that there is a history of alleged association with crime, brothels, and I think that's been perpetuated by the media. So then the Christian right is saying that these clubs cause all these problems, and feminists don't like it, and some dance people don't like it. So given the fact that there is an articulated dislike—even though the clubs are making big money and are very popular—given the fact that there's this articulated hostility, it makes the clubs vulnerable, and a politician’s not going to come out and support them because he's afraid or she's afraid of [not] being reelected. And they need money now!
You would think the way around that would be to allow more clubs to open so they get the tax revenue.
Babydolls in Dallas had the top liquor sales in the state, and they still went after it! The Christian right—I was just amazed to learn about it. My first case I had to break through a picket line, Washington Together Against Pornography, and I certainly wouldn't categorize those clubs as pornographic.
As I'm sure you've run into time and again when you've testified on these cases, anything that does purport to be a study of exotic dance hasn't been subjected to academic rigor. There's a lack of reputable research.
I don't think there's research that addresses the complaints. I just was continually surprised at—when I went to school—all these Protestant independent churches, it was really quite frightening to realize the alliances and the organizations that have megabucks, like a Super PAC, to support the fight against these clubs. Scott Bergthold is like a salesman. He goes around telling local governments that these clubs cause all these problems and that he'll write the legislation and he'll defend it. He's making a lot of money, and again, people just don't know. I have a friend who was the mayor of Pomona and she said, “Oh, we wouldn't have clubs in our city,” without knowing anything but what's in the media. You know what I find really funny now that I'm thinking about what's happened over the last say 20 years? You can come out as gay, you can come out as an atheist—you used to not be able to do that—but you can't come out as a stripper.
How did you come to study exotic dance?
In 1995, a planner from Tampa and an attorney from Seattle asked me to be an expert court witness in a First Amendment case related to exotic dance. They wanted me to apply the same anthropological approach to studying adult entertainment dance that I used when I studied dance in African villages, cities, United States schools, and concert theaters. Being a strong free-speech advocate—and excited to apply knowledge of dance and of anthropology to a world I did not know—I agreed. This led to my becoming the world's only expert court witness on the dance itself—from ballet to stripping—as non-verbal communication. Other experts on exotic dance mainly testify on problems the clubs might cause or zoning.
Why, in your observation, does it deserve exemption alongside other forms of dance?
Exotic dance deserves exemption alongside other forms of dance because it is a choreographed theatrical performance that communicates through a learned skill with its own aesthetic.
What concerns does the larger dance world have about the potential outcome of this case?
The larger dance world is divided. I’d guess that more than half dismiss exotic dance as dance and couldn’t care less. However, there are dancers, choreographers, and artistic directors who are very concerned about freedom of expression in any form.