During the Big Peterman Bash that Elaine throws to reward her people for working them so hard, Elaine gets it started with a dance routine that’s more akin to a full body dry-heave set to music. To spare everyone this disturbing image and the additional worry of having to cry, and then cry again, upon seeing it, could a compassionate legislature make such a beyond stinky dance illegal and outlawed?

One nugget you may not know is that dancing is not entirely the kind of expressive conduct that is protected by the First Amendment, and is on shaky ground as being a constitutionally protected activity free of government regulation. Therefore, certain kinds of dancing may be outside the bounds of a person’s First Amendment rights. For instance, dancing that would satisfy the elements of the Miller test for obscenity could be considered beyond First Amendment protections and potentially criminalized (for a primer on obscenity law, see “The Pick“).

Additionally, while the Supreme Court has said that dancing does merit some amount of First Amendment protections, state governments can regulate certain kinds of dancing, like nude dancing. This may be done as long as the rules are created according to content-neutral time, place, and manner restrictions that do not attempt to restrict the expressive conduct of the dancer.

What the hell does that mean?

Well it means that the government is allowed to limit certain kinds of dancing if it is trying to protect a public interest, like stopping George from infecting a healthy host company, rather than trying to curtail the expressive conduct of the dance. For instance, a government could outlaw dance parties in residential areas after 10 PM because it would disturb those who are trying to sleep. There, the government has an interest in protecting sleepers, and it isn’t trying to limit dance, rather it’s just trying to help create public order.

Furthermore, the Supreme Court has ruled that a government can also regulate certain elements of a dance routine if that element is not necessary to the expressive conduct of the dance. For instance, laws requiring erotic dancers to wear a G-string and one of those bras with points are allowed because seeing “good naked” is “not expressive conduct.” If the nudity were somehow vital to the expressive conduct, however, then the situation might be different.

Does this mean that Elaine is going to get the Death Blow? Well a zealous prosecutor might say “that ain’t dancing Sally” and argue that Elaine has violated New York’s obscenity law. To do so would require proving 3 elements (Miller Test):

Whether the average person, applying contemporary “community standards”, would find that the work, taken as a whole, appeals to the prurient interest Whether the work depicts or describes, in an offensive way, sexual conduct as specifically defined by applicable state law and Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Ultimately though, it would be almost impossible to prove that Elaine’s dance violated this law, as it demands that there be sexual elements to violate it. And there is nothing erotic about the little kicks.

So Elaine is going to be cashing the check here, sweet fancy Moses!

While Elaine is likely safe from prosecution, the venue that hosted the big Peterman Bash may actually be in some trouble. Although it was repealed in 2017, the New York Cabaret Law, enacted in 1926, prohibited public establishments like bars and restaurants from allowing its patrons to dance without having a license. Elaine’s party took place in 1996 when The Cabaret Law was still in effect. Mayor Rudy Giuliani, who was mayor at the time of “The Little Kicks,” was known to be a strict enforcer of the law as part of his overall plan of cracking down on quality of life crimes, like how much fat is really in yogurt.

It’s unclear exactly where the party takes place, but one thing’s for sure, it’s not the Peterman office. However, Seinfeld sleuth “Maps About Nothing” tracked it down, identifying it as The Puck Building in the Nolita neighborhood of Manhattan. It’s unclear whether the building had a dancing permit. If it didn’t then that could cause some trouble for the owners of the building.

All in all though, it’s unlikely that either The Puck Building or Elaine is going to be dropped like a bag dirt. But that doesn’t mean Elaine shouldn’t worry about the office vibe every once in a while.

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