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Recreational dancing is not universally protected. Therefore, Lapham cannot rely solely on the perceived violation of First Amendment rights in this case.
Plaintiff Rebecca Willis sought protection for her rights to dance provocatively in public. Lapham, on the other hand, seeks protection for his right as a bar owner to let his patrons move and sway to music as they please.
In other words, the town of Marshall, NC did not restrict dancing in itself; it only sought to monitor the type of dancing that took place. If a new form of dancing evolved that involved punching strangers, that too could be restricted but would have no bearing on whether citizens have the right to move and sway.
Lapham cannot rely on Fourteenth Amendment arguments either, as there may be no evidence that the city of New York is discriminating against his license application. However, there is no reason why the city should put a cap on how many bars permit dancing within their premises.
Application to Facts
There is no reason why self-expression must essentially entail the "right to listen," as was suggested in the Willis v. Town of Marshall, NC case. An artist has the right to paint whatever she likes regardless of whether another soul sees the painting. Similarly, citizens have the...
We can use this line of argument to dispute the resolution in Willis v. Town of Marshall, NC.
Moreover, there is no reason to enforce cabaret licensing to begin with. While Merco v. Guggenheimer showed that the city of New York was not unlawfully discriminating against license petitioners, the findings did not question the reasoning behind cabaret laws in the first place. Alcohol licenses arguably help promote public safety by helping the city keep guard over alcohol-related crimes. Dancing cannot be considered an activity that warrants restriction. The city has no more right to license dancing than it has the right to license jogging.
Conclusion
Sullivan and Rogier should take on the Lapham case only if we are willing to challenge the rulings in Willis v. Town of Marshall, NC and Merco v. Guggenheimer. The former ruling indicated that dance is only constitutionally protected when it is expressly used to communicate a message or in a professional setting. The latter suggested that as long as the city does not discriminate that Fourteenth Amendment rights are not being violated. However, we can dispute these rulings because they may be unsound and unreasonable interpretations of the U.S. Constitution.
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