New York City cabaret licensing and the constitutionality of dance restrictions

Legal Memo

Re: Lapham v. City of New York

Facts

Sullivan and Rogier have recently been asked to represent Mr. Lapham, a New York City bar owner. Lapham claims that New York City Cabaret Laws unnecessarily and perhaps unlawfully restrict the number of cabaret licenses available to bar owners. Moreover, Lapham notes that the city ordinances against unlicensed dancing may themselves be unconstitutional, as they restrict the freedom of bar patrons to move and sway to music: a harmless form of self-expression. Lapham's bar is licensed for live music, but Lapham has no dance floor. Patrons who dance are not creating any occupational hazards, as they simply seem to move in place while they hold their drinks. Lapham has tried to work with the city ordinance by applying for a Cabaret license but none are available; Manhattan has issued only 273.

Issues or Questions

Lapham raises several questions relevant to whether Sullivan and Rogier should take this case. Each issue in this case relates to First and Fourteenth Amendment rights:

Is recreational dancing protected by the First Amendment?

If not, why?

Do city ordinances unconstitutionally restrict the rights of citizens to freely associate?

Does the city of New York have the right to limit the number of cabaret licenses it grants to bar owners?

If so, are their licensing procedures unnecessarily vague or discriminatory and therefore in violation of Fourteenth Amendment rights?

Analysis

In the case of Willis v. Town of Marshall, NC, the plaintiff alleged that her provocative dancing was protected under First Amendment rights of free speech. The court ruled that dance only constitutes a form of free speech when it is expressly used as human communication or as a professional art. 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 right to dance regardless of whether they are trying to convey a message. 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.