Does the Utah Constitution protect nude dancing in adult entertainment establishments? American Bush v. City of South Salt Lake Explained

In American Bush v. City of South Salt Lake, the Utah Supreme Court addressed whether the state constitution’s free speech provisions provide broader protection than federal law for nude dancing in sexually oriented businesses.

Background and Facts

Several adult entertainment businesses in South Salt Lake challenged a city ordinance that prohibited employees from appearing nude before patrons. The businesses argued that Utah’s constitution, which guarantees the right to “communicate freely their thoughts and opinions,” provides broader protection for expression than the federal Constitution. The trial court granted summary judgment for the city.

Key Legal Issues

The court confronted two main questions: whether nude dancing constitutes protected communication under Utah’s constitution, and if so, whether it falls within the “abuse of that right” exception. The case required extensive analysis of Utah’s constitutional text and the historical understanding of free speech protections at the time of ratification.

Court’s Analysis and Holding

The majority applied a historical approach to constitutional interpretation, examining the text, common law, and statutory law in effect when Utah’s constitution was adopted in 1895. The court concluded that the “responsible for the abuse of that right” language preserved the state’s power to regulate speech deemed harmful or immoral under historical exceptions. Finding that territorial and early state laws criminalized nude exhibitions, the court held that the framers did not intend to protect nude dancing under the free speech guarantee.

Practice Implications

This decision demonstrates that Utah courts may interpret state constitutional provisions more restrictively than federal counterparts when historical evidence supports such limitations. The ruling also shows the importance of original meaning analysis in Utah constitutional interpretation, where courts examine not just the text but the legal and social context at the time of adoption. Practitioners should be prepared to address historical evidence when making state constitutional arguments that diverge from federal precedent.