UCLA UCLA Entertainment Law Review Title Dangerous Bodies: Freak Shows, Expression, and Exploitation Permalink https://escholarship.org/uc/item/1g32z0dx Journal UCLA Entertainment Law Review, 14(2) ISSN 1073-2896 Author Fordham, Brigham A. Publication Date 2007 DOI 10.5070/LR8142027098 Peer reviewed eScholarship.org Powered by the California Digital Library University of California Dangerous Bodies: Freak Shows, Expression, and Exploitation Brigham A. Fordham* I. INTRODUCTION ............................................. 208 II. DEVIANT BODIES AND THE RISE OF THE FREAK SHOW IN A M ERICA .. ................................................ 210 A. Development of the traditionalfreak show ........... 210 B. The freak show revival ............................... 212 III. INTERPRETING THE CONTEXT OF FREAK SHOWS .......... 215 A. Show biz: "Freaks" as socially constructed ........... 215 B. The nature of choice: Self determination and social consequences ......................................... 218 C. Ugly bodies: Freak shows and group oppression ..... 222 IV. FREAK SHOWS IN LEGAL DISCOURSE ..................... 224 A. Illegal bodies: Taxation and prohibition .............. 224 B. Public morality: Challenges to prohibition............ 230 1. Galyon v. San Bernardino ....................... 231 2. World Fair Freaks and Attractions v. Hodges .... 234 V. THE POWER OF THE STATE TO REGULATE FREAK SHOWS ...................................................... 237 A. Police power analysis ................................ 237 B. First Amendment analysis ............................ 240 1. Prohibiting freak shows in order to prevent exploitation ...................................... 241 2. Prohibiting freak shows for the sake of propriety ......................................... 242 * Mr. Fordham is an associate in the San Diego office of Morrison & Foerster LLP. Prior to working at Morrison & Foerster, Mr. Fordham clerked for Chief Justice Christine Dur- ham with the Supreme Court of Utah from 2001-2002. Mr. Fordham received his J.D. from UC Berkeley School of Law (Boalt Hall), where he was a member of California Law Review and the Berkeley Technology Law Journal. He currently teaches trademark law for the Uni- versity of California at San Diego Extension. 208 UCLA ENTERTAINMENT LAW REVIEW [Vol. 14:2 3. Prohibiting freak shows in order to prevent discrim ination .................................... 243 4. Recognizing a higher objective .................. 244 V I. CONCLUSION ............................................. 245 I. INTRODUCTION Their names tell exotic and terrifying stories: the Living Skeleton, the Bearded Lady, General Tom Thumb, the Cannibal, the Legless Wonder, the Lobster Boy. During the late 1800s these and other so- called "freaks" were presented in shows that traveled across America.' 2 People from all walks of life would bustle to see the "freak shows" which were extolled as educational and uplifting, starring "live" human exhibits.3 Capitalizing on a new fascination with science and the inhab- itants of foreign lands, freak show promoters would beckon to pass- ersby, claiming the performers came from distant lands, manufacturing strange life stories for each of them, and asking only a nickel to see the 4 rare scientific spectacles. Freak shows became a less popular form of entertainment after the first quarter of the twentieth century, as physical anomalies were in- creasingly viewed from a medical standpoint and, later, as the begin- nings of "political correctness" took hold.5 In the past fifteen years, however, there has been what some have called a new "renaissance" of the freak show.6 Today, the traditions, images, and fictions of earlier freak shows are increasingly reborn in traveling shows, displayed on internet web sites, and morphed into television shows and performance art.7 Over the past twenty years, a number of non-legal scholars have investigated the history and meaning of freak shows in American cul- ture." Little or no attention, however, has been given to the laws and I Rosemarie Garland Thomson, Introduction: From Wonder to Error - A Genealogy of Freak Discourse In Modernity, in FREAKERY 1, 5-10 (Rosmarie Garland Thomson, ed.) (1996). 2 I use the term "freak show" in this article to refer to the traveling shows of the late nineteenth and early twentieth centuries that included a stylized display of persons with unusual bodies as a form of entertainment. In using this term, I do not intend to imply that freak show performers are in fact "freaks" in the modern sense of the word. 3 THOMSON, supra note 1, at 5. ' Id. at 5-10. 5 ROBERT BOGDAN, FREAK SHOW 62-67 (1990). 6 RACHEL ADAMS, SIDESHOW U.S.A. 1 (2001). 7 Id. at 210-28; see also infra notes 42-47, 50-53, and 56-61 and accompanying text. 8 Robert Bogdan provides the seminal work in this area, tracing the history of the freak show through the 1980s and explaining the social construction of freak shows. See generally Bogdan, supra note 2; Thomson supra note 1, at 13-14. 2007] DANGEROUS BODIES ordinances that regulate freak shows or the legal rights of freak show participants. Myriad towns and cities today have ordinances that pro- hibit or charge a fee for freak shows,9 and a number of states have passed laws aimed at limiting or prohibiting the exhibition of those with unusual bodies. 10 In California and Florida, laws prohibiting freak shows have been held unconstitutional-not because the laws were thought to violate the First Amendment, but rather because persons with unusual bodies have a right to be employed and, surprisingly, the courts assume freak shows are the only possible job for such people.11 This Article seeks to introduce legal discourse into the discussion of freak shows and, in the process, to comment on legal approaches to preventing discrimination against persons who are physically different. Drawing upon the theories and analysis of non-legal scholars and laws concerning employment of persons with disabilities, this article exam- ines statutes, ordinances, and case law that address freak shows. This investigation not only expands our understanding of the historical freak show, it also demonstrates the need for legislatures and jurists to recog- nize that social assumptions, not physical conditions, are the root of discrimination against persons with unusual bodies. In Part Two, I briefly describe the development of the freak show tradition in America and the current revival of that tradition in various forms. In Part Three, I introduce research and theories of non-legal scholars and comment on aspects of those theories that will be particu- larly relevant to the discussion of freak shows in legal discourse. In Part Four, I identify and analyze specific laws, ordinances, and case law that address regulation and prohibition of freaks shows. I argue that these laws and cases seem to express some legitimate objectives, but that they are rendered ineffective because they fail to see beyond the fictions and drama of the freak show and instead adopt stigmatizing assumptions about persons with unusual bodies. In Part Five, I address the constitutionality of laws that regulate or prohibit freak shows. I argue that contemporary freak shows include expressive elements that are subject to First Amendment protection, and that the objectives of laws restricting freak shows can be better achieved by prohibiting discrimination against those who are physically different. What we learn from laws, ordinances, and case law addressing freaks shows, I argue in the final section, is that the law cannot very 9 See notes 115 and 127, infra. 10 See note 122, infra. 11 See notes 140 and 160, infra. 210 UCLA ENTERTAINMENT LAW REVIEW [Vol. 14:2 well regulate that which it does not understand. So long as legal dis- course relies upon erroneous social assumptions about those who are physically different, it will be ineffective in preventing discrimination or regulating this controversial form of expression. II. DEVIANT BODIES AND THE RISE OF THE FREAK SHOW IN AMERICA The rise of the freak show in America manifests an evolution in attitudes toward unusual bodies over the past two centuries. The ex- traordinary body moves from a sign of divine will to an object of scien- tific curiosity, to a medical flaw, to a political unit. Science usurps the body from God, medicine usurps it from science, and politics takes it from medicine. Throughout this evolution, the extraordinary body is constantly reinvented as both dangerous and impotent, both preternat- ural and comprehendible. It is at once a source of awe and shame, a privilege and social anathema. Most of the laws and ordinances regulating freak shows were passed near the end of this evolution-at a time when freak shows were quickly losing social status and growing more degrading for the per- formers.12 This form of the freak show, with its low social status and negative connotations regarding physical difference, is what most peo- ple today think of when they hear the term "freak show."1 3 Contrary to this modern connotation, however, freak shows were not always con- 14 sidered disreputable. The current revival of freak shows borrows much from the freak shows of earlier times, though today's freak shows are much more di- verse in content, media, and message than the traditional freak show. 15 A. Development of the traditionalfreak show People who have different bodies have long been a source of won- der and inspiration. As disruptions in the predictable course of nature, extraordinary bodies have been cause