Miller v. Civil City of South Bend

Today this court holds that “freedom of speech” protects public, nonverbal, nude dancing that communicates no ideas and is considered harmful. Not surprisingly, in their briefs and at oral argument the parties never discussed the text of the First Amendment. Perhaps this is because everyone knows that “Congress shall make no law ... abridging the freedom of speech”; more likely, it is because reference to the text is a stark reminder of how far First Amendment jurisprudence has gone astray.

Miller should not prevail for two reasons. First, the district court found that the nude dancing at…