For over three decades, entertainer Liza Minnelli has belted out the line that, for some, "life is a cabaret."
A recent case decided by the Honorable Michael D. Stallman, a New York County Supreme Court Judge, brought the lyrics of that song to life. The question presented to the Court was whether "social dancing" comprised a form of "protected speech" and whether New York City's restrictions on the licensing and location of social-dance establishments were constitutionally violative or applied in an "arbitrary and capricious" manner.
By way of a quick introduction, New York City's Administrative Code requires all "cabarets" to be licensed by the Department of Consumer Affairs and defines the term as encompassing
[a]ny room, place or space in the city in which any musical entertainment, singing, dancing or other form of amusement is permitted in connection with the restaurant business or the business of directly or indirectly selling to the public food or drink, except eating or drinking places, which provide incidental music entertainment without dancing, either by mechanical devices, or by not more than three persons.
In Festa v. New York City Department of Consumer Affairs, the Plaintiffs were a group of "social dancers" and sponsors of social dances (ballroom, swing, country-western, house/goth, and Latin). Anticipating surmise and conjecture, the Court's decision makes it abundantly clear that the case did "not involve any type of performance, instruction or remuneration." It also did not involve under persons under the age of 18, there was no nudity or "adult entertainment." Rather, the crux of the dispute was whether the City's cabaret and zoning laws infringed upon the Plaintiffs' "right of expression."
While our State's Constitution provides, in part, that all citizens may "freely speak, write and publish his or her sentiments on all subjects...and no law shall be passed to restrain or abridge the liberty of speech or of the press," in order for conduct to be considered a form of protected speech a "particularized message" must be conveyed and there must be some likelihood that those who perceive that message will understand it. And, as far as dance is concerned, courts have recognized a dichotomy between "dance performance" and "recreational/social dancing." In the latter instance, such conduct as been characterized as "non-communicative, physical activity," which is, as Judge Stallman put it, about "as expressive as walking down the street or meeting friends at the mall."
Without a workable framework, a seemingly endless array of physical, athletic or recreational activity would comprise a form of protected speech and would thereby diminish the "'concept of expression to the point of the meaningless.'" And, as Judge Stallman noted,
It is beyond this Court to fix a degree of expressive communication for constitutional challenges that would, in all instances, apply only to social dancing but exclude other similar recreational activities, without resorting to suspect content-based classifications. It is not for the Court to pass judgment as to whether, for instance, 'clowning' and 'krumping' are more expressive than the Argentine tango ....
In the absence of a constitutional violation, and after finding that the City's laws were reasonably related to public safety and welfare, the Plaintiffs' case was given the boot and ChaCha'd right out of the courthouse.
Mambo Italiano, anyone?
For a copy of the New York County Supreme Court's decision in Festa v. New York City Department of Consumer Affairs, please use the following link: http://www.nycourts.gov/reporter/3dseries/2006/2006_26125.htm
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