A federal appeals court ruled in favor of a Tennessee law that makes totally nude dancing a crime in sexually oriented businesses. According to a three-judge panel of the 6th Circuit Court of Appeals, the public indecency law, which took effect July 1994, does not violate First Amendment rights to free expression. \n The law had been challenged in separate suits filed by dancers, managers and owners of nude dance clubs in Memphis, Nashville and Chattanooga. It forbids "the showing of the bare human male or female genitals or pubic area with less than a fully opaque covering" and "the showing of the female breast with less than a fully opaque covering of the areola."
The preamble to the law says it is not intended to suppress legitimate speech or expression but to fight the "adverse effects" or adult businesses, such as crime, blight and decreased property values.
Initially, the law was upheld by U.S. District Judge Robert Echols of Nashville, who cited the decision of the U.S. Supreme Court in the 1991 case of Barnes v. Glen Theatre, Inc. In that dispute, the court divided 5-4 in favor of an Indiana law that required G-strings and pasties. The court majority said this was no more than an incidental restriction on free expression rights.
In the Tennessee case, the three-judge panel ruled the law passes constitutional muster because it is not intended to stifle a particular message but to combat "secondary crime effects." That makes the law "content neutral" and therefore easier to uphold than laws designed to prohibit a particular message.
Anyway, the court said, the Tennessee law "still allows for considerable capacity and opportunity to express the erotic message."
The decision may be appealed to the full Circuit Court of Appeals and then, if necessary, to the U.S. Supreme Court. A lawyer for the plaintiffs said that, so far, no decision on an appeal has been reached.
